GERARD HENDERSON’S MEDIA WATCH DOG
ISSUE – NO. 478
22 November 2019
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The inaugural issue of “Gerard Henderson’s Media Watch” was published in April 1988 – over a year before the first edition of the ABC TV Media Watch program went to air. Between November 1997 and October 2015 “Gerard Henderson’s Media Watch” was published as part of The Sydney Institute Quarterly. In March 2009 Gerard Henderson’s Media Watch Dog blog commenced publication.
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Stop Press – SMH features page one story on China’s attempt to “rule us”, also features 8-page supplement prepared by China Daily; Nicholas Reece performs a live-action (uncredited) retweet re Prince Andrew on Paul Murray Live
MWD Editorial – ABC’s new management yet to shine
Can You Bear It? David Marr’s farting cow delusions; Tony Jones defends Fran Kelly while complimenting himself; Richard Glover lays on the flattery for Peter FitzSimons
MWD Exclusive – An update on the ABC’s historical abuse case which has not been reported on the ABC
New Feature – When Jackie feels someone else’s pain – Jackie feels Andrew Probyn’s pain re freedom of information
Hinch on Hinch – Derryn Hinch misses his cue during a supposedly impromptu performance
A Bush Lawyer Examined – An update on Jack Waterford & Tim Soutphommasane plus MWD v (Bush Lawyer) David Marr
Documentation – Louise Milligan’s vile abuse
THE SMH’S CHINA WATCH SUPPLEMENT PROVIDES “EVIDENCE” TO SUPPORT ITS PAGE ONE CHINA STORY
It was Hangover Time this morning when Jackie’s (male) co-owner heard the morning’s newspapers arrive, not with a whimper but with a bang, on Jackie’s kennel.
Opening up the Sydney Morning Herald, Gerard Henderson found that the lead story on Page One (by Peter Hartcher) was titled “China seeks to rule us: ex-ASIO chief”. The story reported an interview which Duncan Lewis, the former head of the Australian Intelligence Security Organisation, had given to the SMH’s political and international editor.
Then, examining the SMH’s inserts, an eight-page supplement dropped out. It was prepared by the People’s Republic of China’s China Daily – and titled All You Need to Know: China Watch. The main story was “[China’s] Leaders committed to modernising governance.”
Could it be that China’s attempt to rule Australia has commenced in the advertising inserts of Nine Newspapers? – MWD hears you cry. We’ll keep you posted.
NICHOLAS REECE CHANNELS CHARLIE PROCTOR, EDITOR OF THE ROYAL CENTRAL, ON THE PRINCE ANDREW FLAME-OUT
Jackie’s (male) co-owner turned on Sky News’ Paul Murray Live around Post-Dinner Drinks Time last night – only to hear presenter Paul Murray and his panellists Bronwyn Bishop and Nicholas Reece sounding forth on the latest scandal to afflict the Royal Family. Namely, Prince Andrew’s alleged sexual encounters with underage girls over a decade ago.
When the topic turned to Prince Andrew’s disastrous BBC interview with Emily Maitlis at the weekend, your man Reece had this to say:
Nicholas Reece: … I mean, for decades to come, people are going to go back and watch that BBC interview with Prince Andrew because it was monumental in terms of how bad it was. Every public relations student, every politician and certainly every future Royal will be made to watch it in terms of what not to do. I mean it wasn’t just a train wreck. It was like an airline crashing into an oil tanker, which then set off a tsunami, which caused a nuclear reactor to explode. Like it was just so bad.
Yeah. Like it was just like that. In any event, Hendo was mightily impressed by the descriptive powers of your man Reece – who holds the (exalted) positions of Principal Fellow with the Melbourne School of Government and Director of Strategy, Enterprise and Projects in the Chancellery at the University of Melbourne. [Wow. I’m so impressed – MWD Editor.]
But then Jackie’s (male) co-owner suffered a deja-vu experience, believing that he had heard this somewhere before. Initially he reflected that, perhaps earlier in the night, he had had one Gin & Tonic too many. But then he recalled the tweet by Charlie Proctor, the editor-in-chief of royalcentral.co.uk, which went out last Sunday. Here it is:
Well, fancy that. Great minds think alike – or do they? [Perhaps this should have gone into your hugely popular Can You Bear It? segment. Just a thought. –MWD Editor.]
ABC’S NEW MANAGEMENT YET TO SHINE
It is MWD’s long held contention – extending well beyond the current ABC management – that nobody runs the ABC. And that it is a staff collective where various soviets run various outlets – like 7.30, Q&A, AM, The World Today, PM, Radio National Breakfast and more besides. The various members of the collective effectively appoint and promote their own – with an occasional exception (for example, the decision to engage David Speers to present Insiders in 2020 and beyond). To be fair to the relatively new managing director and chair, this may change in the medium to long-term – but significant change is not evident as yet. So far, the legacy of former managing director and (so-called) editor-in-chief Mark Scott appears to be extant.
This was never more evident than with ABC management’s handling of the controversial “Broadside” episode of Q&A on 4 November 2019. The program aired uncontested views on extra-judicial killings and arson-advocacy along with language which would have been offensive to many viewers.
The ABC said nothing about the program for three days. Then on Thursday 7 November, ABC managing director and editor-in-chief David Anderson announced that he has set up an inquiry as to whether the program breached the ABC’s editorial standards. Subsequently, the ABC chair Ita Buttrose advised that the program would be removed from ABC outlets, including iView. The establishment of an inquiry can only mean that senior ABC management have no idea what the taxpayer funded public broadcaster’s editorial standards amount to – and have had to set up an inquiry by more junior staff to find out.
It was much the same this week when The Australian’s “Media” editor Leo Shanahan ran a story on Monday that senior ABC employees proposed to set up an “ABC staff climate crisis advisory group” with a view to engaging in “solution journalism”. This proposal was clearly in conflict with the ABC Charter. Even so, it was supported by such senior journalists as Barbara Heggen, Karen Percy, Dominique Schwartz, Sarah Macdonald, Linda Mottram and (to a lesser extent) Stephen Long.
The news of the proposed ABC staff climate crisis advisory group broke on Monday morning. But ABC management said nothing in response to the story about the creation of (yet another) staff soviet within the ABC broadcaster.
Nothing at all. Until ABC chair Ita Buttrose went on ABC Radio in Adelaide on Wednesday. In response to a question, Ms Buttrose said that the ABC staff climate crisis advocacy group was “one of those ideas that is not going to happen”. Asked why, by presenter David Bevan, she replied: “Because the ABC leadership team and managing director [David Anderson] have thought otherwise.”
So here’s what happened. A staff proposal, clearly in conflict with the ABC Charter, was revealed on Monday morning. The ABC managing director said nothing immediately. But the news that ABC management did not support the proposal was announced by the ABC chair Ita Buttrose (who is not part of the ABC management team) some 48 hours later. This is further evidence that David Anderson – like his predecessor Mark Scott – is not running the ABC show. But, to be fair, it is early days for the ABC’s relatively new management.
THE GUARDIAN’S DAVID MARR – DELUDED ABOUT THE LAND OF THE FARTING COW
It was a more emotional than usual David Marr who appeared on the ABC TV Insiders couch last Sunday. So it came as no surprise when he emoted at large on so many issues. Including climate change and all that.
As it turned out, discussion on Insiders on 16 November took the form of an ABC tag-team contest. In the traditional art of wrestling, a tag-team contest consists of two teams of two wrestlers contesting against each other – with an independent referee. An ABC tag-team, however, consists of two panellists plus the referee contesting against a lone panellist. And so it came to pass last Sunday when Radio National Drive’s Patricia Karvelas tagged up with The Guardian’s David Marr plus Fran (“I’m an activist”) Kelly against Network Seven’s Mark Riley.
Your man Riley did very well in maintaining his fact-based positions against the Karvelas/Marr/Kelly tag-team on a range of issues. “Banjo” Paterson once wrote: “The man that holds his own is good enough”. Last Sunday, Mr Riley held his own. Well done.
Network Seven’s chief political reporter also impressed Jackie’s [male] co-owner by using the word “discussion” – rather than that dreadful cliché “the conversation”. Let’s go to the transcript as Mr Riley attempts to make the point that a country like Australia, which produces about 1.3 per cent of global emissions, cannot be held responsible for global warming, fires and all that:
Mark Riley:.I think it would be best if the Prime Minister did meet them [the former fire chiefs], frankly. And he went along with [Angus] Taylor and [David] Littleproud. And –
Fran Kelly: [interrupting] And that’s what they [the former fire chiefs] were saying. If you just meet with the climate minister, where are we going to? – they’re talking about resources and climate. They’re talking about those two things.
Mark Riley: They’ve got really genuine points – and this is the thing I’m saying to David [Marr] – I’m not against the discussion, I think we need to have the discussion. Climate change is an enormous issue. But international politics has shown an absolute inability and unwillingness to deal with it. And I don’t think international politics is going to solve it the way –
David Marr: [Interjecting] That is an astonishingly sweeping condemnation.
Mark Riley: But it’s true, David
David Marr: Look at New Zealand.
What a load of absolute tosh. Jacinda Ardern’s Labour government has reached an agreement whereby agriculture will not be included in New Zealand’s emissions trading scheme. Agriculture amounts to about 50 per cent of New Zealand’s exports.
Imagine what David Marr would say if Scott Morrison’s Coalition government had coal and gas emissions excluded from Australia’s emissions targets? But Comrade Marr reckons that it’s quite okay if agricultural emissions are not counted in The Land of the Farting Cow. Even to the extent of asserting that, of all the world’s nations, New Zealand is willing to deal with climate change. Can You Bear It?
TONY JONES’ (GRATUITOUS) DEFENCE OF FRAN KELLY LETS PETER McEVOY OFF-THE-HOOK
While on the topic of Fran Kelly, long-term ABC TV Q&A presenter Tony Jones has commented on Comrade Kelly’s performance when fronting Q&A on Monday 4 November. Remember? The program where the call of one panellist (Mona Eltahawy) for a bout of extra-judicial killings was uncontested. As was another panellist’s (Nayuka Gorrie) advocacy of arson.
In his somewhat condescending defence of his colleague, your man Jones told The Australian’s “Media” section (18 November) that Q&A is frequently hard to host – adding:
It can be very tricky, it’s a matter of experience — I’ve been doing it for 12 years. I really feel for people who do brief stints. People need to take a chill pill. Fran has been a brilliant broadcaster over many years.
That’s all very well as far as it goes. The problem is that it did not go very far. Ms Kelly was the presenter of the program, that’s all. She told The Australian’s Nick Tabakoff recently that she should have intervened after Mona Eltahawy’s endorsement of extra-judicial killings of men who rape women. By the way, Comrade Eltahawy is opposed to capital punishment by the state.
However, the real problem with the program turned on its panel which did not include even a token Q&A panel conservative. Also, this segment of Q&A was done in cooperation with the leftist Wheeler Centre in Melbourne – which was born with a $25 million taxpayer hand-out in its mouth, per courtesy of the Labor government in the People’s Socialist Republic of Victoria.
In other words, the essential problem with the Q&A program which aired on 4 November turned on its panel – which was a leftist stack. Comrade Kelly would not have needed Comrade Jones’ (gratuitous) defence – if Comrade McEvoy had not done a deal with the comrades at the Wheeler Centre and produced a stacked panel which contained advocates of extra judicial killings along with some arson advocacy thrown in. Yet Comrade Jones said nothing about his bestie Comrade McEvoy’s handling of the program. Can You Bear It?
LAYING ON THE FLATTERY – STARRING NINE NEWSPAPERS’ RICHARD GLOVER ON NINE NEWSPAPERS’ PETER FITZSIMONS’ “INSPIRING BRILLIANCE”
There was enormous interest in MWD’s coverage of the 2019 Andrew Olle Media Lecture – which featured Nine Newspapers’ columnist Peter FitzSimons as guest speaker. It was one of those special occasions when the Red Bandannaed One chose to appear in public without a red rag on his head.
Jackie’s (male) co-owner did not go to the occasion – believing that a wine or two (glass, that is) on the couch with Jackie watching Fox News or Sky News would be a better way of spending a Friday night. As it turned out, the FitzSimons speech was as predictable as could be expected. Stephen Brook, who is no conservative, put it this way in Crikey (4 November 2019):
Few, if any, previous speeches have received the standing ovation bestowed on FitzSimons this year. But the speech was traditional to the point of pedestrian. Some key takeaways: journalism is great; the old days of the [Sydney Morning] Herald were great; Kate McClymont is great; Waleed Aly is great; Louise Milligan is great; The ABC is great; press freedom is great; the Uluru Statement From the Heart is great; climate change denialism is bad; clickbait and overly partisan attacks are bad; and so are the Australian Federal Police. Here he was preaching to the converted.
Avid readers by the score have asked MWD what the compere said at the end of the speech. It was Richard Glover, who writes a Sydney Morning Herald column and presents Drive on ABC Radio Sydney – and of course, who comes from the incestuously-employed ABC/Sydney Morning Herald Family of leftist luvvies. This is what he had to say:
Richard Glover: Please thank Peter FitzSimons. Do we agree with him? [Response: “Yes”] Ladies and gentlemen, do we agree with him? [Response: “Yes”] Do we know that what he says is true? [Response: “Yes”] We are in a moment of crisis and we had the right person to speak to us tonight and we really thank you for those stirring words. It was brilliant and it was inspiring, and it needed to be said and you said it so beautifully. You mentioned Stuart Littlemore [former ABC TV Media Watch presenter]. I too have been on Stuart Littlemore. Stuart Littlemore did a statistical analysis of Australian columnists. Of how many times they use the word, the letter ‘I’, the word ‘I’. Like Peter [FitzSimons] sitting at home one night, terrible, my name comes up. I came second. Guess who came first. [Answer: Peter FitzSimons]. To offer the vote of thanks, another legend of our craft….
Here Richard Glover introduced the legendary ABC Radio Sydney “Breakfast” co-presenter and one-time Sydney Morning Herald columnist Wendy (“I’m just an old fashioned socialist”) Harmer. It was that kind of Sandalista night. Peter said how brilliant Richard was who said how brilliant Peter was and then described Wendy as a legend and then Wendy said how brilliant…. Can You Bear It?
AN UDPATE ON THE ABC’s HISTORICAL ABUSE CASE WHICH HAS NOT BEEN REPORTED ON THE ABC
MWD readers have been wondering what, if anything, happened to the Jon Stephens matter. As readers are aware, in late June 2017 Jon Stephens pleaded guilty in Gosford Local Court to sexually abusing an underage boy while on official ABC duties in 1981.
The ABC has consistently declined to report the Jon Stephens case – a decision which has the support of the ABC TV Media Watch program. As a result, most ABC staff are completely unaware of the ABC’s very own case of historical child sexual abuse. Also, Nine Newspapers have not reported Jon Stephens’ pedophilia guilty plea. The matter has only been covered in News Corp publications.
From time to time, the Jon Stephens matter has been raised in Senate Estimates by Senator Eric Abetz. These proceedings, likewise, have also not been covered on the ABC or in Nine Newspapers.
Below is the Question and Response with respect to the Commonwealth Department of Communications and Arts which has just been released:
Question No. 914
Senator the Hon Eric Abetz asked the Minister representing the Minister for Communications, Cyber Safety and the Arts, Senator the Hon Linda Reynolds CSC, upon notice, on 24 October 2019
With reference to the Australian Broadcasting Corporation (ABC): Can a full up-date be provided on the ABC’s interactions with Mr Jon Stevens’ [sic] victim – in particular:
- how much has been spent on legal representation, to date;
- what actions have been taken to reach out to the victim;
- what support, if any, has been provided to the victim and when was such support provided; and
- what follow-up reporting on this matter has been undertaken by the ABC.
Senator the Hon Linda Reynolds CSC – the answer to the honourable Senator’s question is as follows:
- ABC Legal contacted the victim on 10 April 2018. Two days later he advised that he had a lawyer and subsequently provided that lawyer’s name. ABC Legal had a teleconference with that lawyer on 14 May 2018. The following day, ABC Legal provided that lawyer with information she had requested. The lawyer did not contact the ABC again until 20 March 2019, at which time she provided the ABC with information. On 2 April 2019, ABC Legal wrote to the victim’s lawyer to advise that the ABC is a participant in the Commonwealth’s National Redress Scheme for survivors of sexual abuse. To date, the lawyer has not responded to that letter.
- The victim is legally represented. The ABC initiated contact with this lawyer and has provided relevant information. On 2 April 2019, the ABC advised the victim’s lawyer that it is part of the National Redress Scheme. As the victim is represented by a lawyer, it is not appropriate for the ABC to contact the victim directly.
- The ABC is not aware of any recent developments in the case that would give reason for further reportage.
As readers will be aware, replies to Questions on Notice are prepared by departments. In this instance, the ABC would have provided the response to the Department of Communications which passed it on to the Minister representing the Minister for Communications in the Senate.
MWD will return to this topic next week. In the meantime, MWD notes that, despite its in-house Legal Department, the ABC has spent close to $26,000 of taxpayers’ money concerning what should be a straight-forward case. After all, Jon Stephens pleaded guilty to child sexual abuse. Also, it is noted that ABC Legal contacted the victim on 10 April 2018 – despite the fact that Stephens pleaded guilty in open court in late June 2017. The case was reported in the Central Coast Gosford Express Advocate and the Daily Telegraph the following day.
In conclusion, MWD raises the following points:
- Where has the ABC announced that it joined the National Redress Scheme for victims of child sexual abuse?
- How can the ABC refer to “further reportage” of the Jon Stephens case when the ABC has not reported the matter in the first place?
NEW FEATURE: WHEN JACKIE FEELS SOMEONE ELSE’S PAIN
JACKIE SHARES ANDREW PROBYN’S PAIN ABOUT WHOLE PAGE REDACTIONS TO FOI REQUESTS
Jackie felt ABC political editor Andrew Probyn’s pain when, at the end of Insiders on 10 November, he showed the camera a page from the Department of Social Services’ response to an ABC Freedom of Information request for information about the National Disability Insurance Scheme. The page – along with other pages – was fully redacted. Shame.
To show that, to use a cliché, Jackie has “got Andrew Probyn’s back” on this issue, she visited the Insiders studio in Melbourne last Sunday, around Hangover Time, to show the result of an ABC FOI request to camera. Jackie’s prop was a fully redacted page from the ABC’s response to the IPA’s FOI request about why its staff have been de-platformed by ABC TV’s The Drum. More Shame.
It now seems that fully redacted pages in response to FOI requests are both received and initiated by the ABC. However, unlike the Department of Social Services, the ABC is part of the Right To Know Coalition.
There has been overwhelming demand for more news on the “Spin a Yarn” segment — presented by Derryn (“I got a whopping 2.8% of the primary vote in the 2019 Senate election in Victoria”) Hinch on Sky News every Thursday. After Dark, of course. Towards the end of the program, a turn-table determines what (boring) story The Human Mumble will tell about famous people who have had the privilege of meeting the even more famous Hinch.
According to your man Hinch, the idea of the turn-table came from Canberra Press Gallery journalists Annika Smethurst (News Corp) and Rob Harris (Nine Newspapers). MWD does not doubt this. However, MWD believes that the journos were pulling Hinch’s leg in getting him to tell yet more of his oh-so-boring and inconsequential stories about himself. It’s just that The Human Mumble does not understand when people are laughing at him. It’s a narcissistic trait.
Alas, MWD’s “Occupy Sky News! Retain Hinch” campaign has failed. It was announced on Tuesday that Derryn Hinch’s last program will be on 5 December. Your man Hinch told TV Tonight “it’s a mutual parting. I just didn’t fit the Sky mould. Not right-wing enough. I called myself ‘the hammock’ slung between (Andrew) (Bolt) and (Paul) Murray.”
In fact, Derryn Hinch’s Hinch was neither particularly informative nor particularly entertaining. In any event, MWD will miss Hinch, particularly the “Spin a Yarn” segment.
In recent weeks, MWD has been closing in on catching the methodology of the segment. On 24 November Hinch managed to run a clip from his guest appearance in Nick Giannopoulos’s film The Wog Boy. This suggests that at the very least the producer knew which celebrity the wheel would land on.
And then, last night, – with only Annika Smethurst on the panel the following event occurred. After the wheel landed on John (“I used to be Johnny”) Farnham:
Derryn Hinch: He [John Farnham] released You’re The Voice and it became one of the greatest hits of all time in Australia. But my then about 13 year old step-son, Dylan, when we played it for him he said “it’ll never work in America”. And he was a bit of a muso drummer himself. He said “it’ll never work in America” and I said “why not, it’s a great song?” and he said “it’s too anthemic”. And sadly it didn’t work in America. But there we are. Alright Annika, thanks.
Annika Smethurst: Derryn, you missed the best part. You’re in the video clip. You’re in the film clip of You’re The Voice. [laughs]
Derryn Hinch: I was being modest, here it is, alright here’s a little clip from it.
Which suggests that Ms Smethurst believed that your man Hinch had missed his cue by not referring to his bit part in the John Farnham music video. If Derryn Hinch was not supposed to know which celebrity he would be reminiscing about – why did Annika Smethurst rebuke him for missing the best part of the supposedly impromptu recollection? Here’s hoping that your man Hinch will clarify this before his program ends in early December. Surely we haven’t been treated with Spin a Yarn as fake news for the previous 21 episodes?
A BUSH LAWYER EXAMINED
THE SERIES CONTINUES – STEP FORWARD DAVID MARR
There has been considerable interest in MWD’s “A Bush Lawyer Examined” series. First up, here’s a reminder.
- MWD v (BUSH LAWYER) JACK WATERFORD – AN UPDATE
The first segment titled “MWD v Jack Waterford” (Issue 467), focused on legal and other howlers in Jack Waterford’s Canberra Times article on 24 August 2019 titled “High Court should leave Pell alone”. The former Canberra Times editor advised the High Court of Australia not to consider the Victorian Court of Appeal’s decision in George Pell v The Queen.
At 9.34 am on Wednesday 13 November 2019 the High Court brought down the following decision in George Pell v The Queen:
Gordon J : In this application, Justice Edelman and I order that the application for special leave to appeal to this Court from the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and made on 21 August 2019 be referred to a Full Court of this Court for argument as on an appeal. The parties will be made aware of the directions necessary for undertaking that hearing.
At 9.34 am the matter was concluded
In other words, the High Court declined to follow Jack Waterford’s advice not to consider the Pell case. Instead it held that Pell’s application for special leave to appeal be referred to the Full Court “for argument as on an appeal” – which will be held in early 2020.
As readers will be aware, Jack Waterford wrote to MWD with reference to “MWD v Jack Waterford”. The correspondence, including Gerard Henderson’s response, was published in Issue 467 and Issue 470.
- MWD v (BUSH LAWYER) TIM SOUTPHOMMASANE – AN UPDATE
“MWD v Tim Soutphommasane” was the second in this series – see Issue 468. It was a critique of Tim Soutphommasane’s article in the Sydney Morning Herald titled “Pell and the twisted inversion of victimhood” published on 24 August 2019. Dr Soutphommasane has not contacted MWD to defend his position. The essence of his position, as expressed to SMH, is that jury verdicts and appeal court decisions are always correct and individuals found guilty should not seek redress from the High Court. According to Soutphommasane, an appeal to the High Court in this case would be an attack on the “rule of law”. Really.
- MWD v (BUSH LAWYER) DAVID MARR
And now it’s time for “MWD v David Marr”.
▪ David Marr – After the Pell Conviction
David Marr appeared on ABC TV’s The Drum on 26 February 2019, not long after it became public that George Pell had been found guilty of five historical child sexual abuse charges. While conceding “there’s a possibility that the appeal might be successful”, Marr argued that “to defend Pell” would be to “put the boot into the victim”. This despite the fact that, were an appeal to be successful, the victim would become the “complainant”. In fact, an appeal to the Victorian Court of Appeal was launched not long after the guilty verdict was announced.
▪ David Marr – Before Pell’s Appeal to the Victorian Court of Appeal
Writing in The Guardian on 1 June 2019 in an article titled “The George Pell story is a long way from ending – even if he wins his appeal”, David Marr suggested that Pell might win his appeal to the Victorian Court of Appeal only to have his acquittal overturned by the High Court. It didn’t happen. Pell failed to win his appeal but the High Court will consider his conviction early next year.
In the same article, David Marr suggested that the High Court would overturn the Victorian Court of Appeal’s decision to throw out the conviction of former Christian Brother John Tyrrell (aged 80) for historical child sexual abuse. The facts of the case were not dissimilar to the Pell case. This is what David Marr had to say in The Guardian on 1 June 2019:
…the key issue in Pell’s appeal: that his conviction is unsafe because, taken as a whole, the evidence could not allow the jury to be satisfied of his guilt beyond reasonable doubt. By an extraordinary coincidence, an ancient Christian Brother was set free by the Court of Appeal on exactly those grounds only a couple of days after Pell was sentenced for abusing a St Patrick’s Cathedral choir boy years ago.
The cardinal’s supporters greeted the release of John Tyrrell, 80, with jubilation. Here they saw a pathway for Pell’s acquittal: the Victorian appeal judges had decided that an uncorroborated and at times improbable story told by one man after years of silence was not enough to condemn Tyrrell to prison. But that decision is also on its way to the High Court. The office of the Director of Public Prosecutions appears confident the Canberra judges will once again find that the appeal judges have set the bar too high for the prosecution.
On 7 August 2019, the High Court dismissed the application by the Victorian Director of Public Prosecution for leave to appeal concerning Tyrell’s acquittal. This was done without a hearing and simply on the basis of reading the documents. In other words, the High Court upheld the decision of the Victorian Court of Appeal in Tyrrell v The Queen. The bench, which was unanimous, comprised Justice Stephen Kaye, Justice Richard Niall and Justice Mark Weinberg.
In this instance, the Office of the Director of Public Prosecutions in Victoria was wrong. And so was David Marr – since he anticipated that the High Court would overturn the Court of Appeal’s decision in acquitting Tyrrell of a charge of historical child sexual abuse.
▪ David Marr – After the Victorian Court of Appeal’s Majority Judgment
On 21 August 2019, by a two to one majority, the Victorian Court of Appeal rejected the plaintiff’s appeal in George Pell v The Queen. David Marr – a long time Pell antagonist and author of The Prince: Faith, Abuse and George Pell – appeared on ABC Radio’s The World Today on 27 August 2019. Let’s go to the transcript:
Rachel Mealey: The Victorian Court of Appeal upheld the conviction two to one, but Pell’s legal team is still considering appealing to the High Court.
One commentator who has followed George Pell’s career extensively is The Guardian’s David Marr. David Marr, how do you read the reaction that we have seen in the last day since George Pell’s appeal was dismissed?
David Marr: It ranges from perfectly sensible acceptance by high officers of the church of the decision, through to perfectly reasonable questioning in the ordinary way of a decision of an appeal court, to completely hysterical allegations of conspiracies, plots, mob rule. It’s a very broad spectrum of response.
Rachel Mealey: These three judges of the Court of Appeal fell along similar lines. The two judges who were in the majority said he [the complainant] was a compelling witness; he was not a liar. But the dissenting judge, Mark Weinberg, says that there is “a significant body of cogent evidence casting serious doubt upon the complainant’s account.” [In fact, the whole quote from Justice Weinberg reads as follows: “In the present case, there was a significant body of cogent evidence casting serious doubt upon the complainant’s account, both as to credibility and reliability”. – MWD Editor]
David Marr: Yes.
Rachel Mealey: What are we to make of this?
David Marr: Well, the first thing we make of it is that a majority found for the complainant and against the Cardinal. His conviction by a unanimous jury was upheld. He is a guilty child abuser. Now, there is, however, a division in the Court of Appeal and, no doubt, an attempt will be made to appeal this case to the High Court. And we will see whether the High Court is willing to take it.
It is not a case that involves particularly abstruse questions of law. What’s really going on is an assessment of the facts. What the judges in the Court of Appeal did was to ask themselves, by going back and looking at all of the evidence again – they watched the videos of all of the witnesses, they went to the places that the jury was taken to, they examined the robes, they did it all again. They were a third jury.
And the High Court doesn’t do that stuff. The High Court decides complex questions of law. So, while an application for leave will no doubt be made to the court, it’s by no means certain that the court will actually take the case on and give it another review.
The assertion that the Victorian Court of Appeal acted as “a third jury” in George Pell v The Queen is Bush Lawyer talk. David Marr’s reference to a third jury covers the first jury (which could not enter a unanimous or majority verdict), the second jury (which entered a unanimous guilty verdict) and the Victorian Court of Appeal (which divided two to one).
In Victoria there is no right to a trial by judge alone – as distinct from the other mainland states. A guilty or not guilty verdict can be unanimous – or an 11 to one majority verdict. In other words, a majority verdict can be made if around 91 per cent of jurors agree to a conviction or acquittal. A judge can exercise discretion to offer the jury the possibility of a majority verdict after the jury has been out for around two to three days or more.
So, according to David Marr’s logic (for want of a better word), if the outcome of the Victorian Court of Appeal decision in George Pell v The Queen was the equivalent of “a third jury” – then the third jury would be another hung jury since it did not attain a vote of around 91 per cent for conviction or acquittal. In other words, the vote would have been 66 per cent for a conviction and 33 per cent for an acquittal. Look at it this way; Chief Justice Anne Ferguson and President of the Court of Appeal Justice Chris Maxwell decided to uphold the jury verdict. But Justice Mark Weinberg dissented. So, there was no “third jury” decision for a conviction, in David-Marr-Bush-Lawyer-speak, since the Court of Appeal does not act like a jury. Marr is completely confused, and confusing, on this point.
But there’s more. David Marr’s assertion that the High Court does not look at the evidence in a criminal case that led to a conviction – and only involves itself in “abstruse questions of law” – is not accurate. See, for example, the recent unanimous decision of the High Court in Steven Mark John Fennell v The Queen – where the following comment is made in the unanimous judgment by Kiefel C.J., Keane J, Nettle J, Gordon J and Edelman J:
In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion. A corollary of this principle, particularly in cases in which the conclusion is not clear-cut, is that a substantial error, or errors, by an intermediate court of appeal in the process of assessing the case as a whole can infect the entire process.
The Court of Appeal (Gotterson JA, with whom Philippides JA and Byrne SJA agreed) properly engaged in a consideration of the case as a whole when assessing Mr Fennell’s submission that the jury verdict was unreasonable or cannot be supported having regard to the evidence. However, and with genuine respect for an experienced judge, the reasoning of Gotterson JA involved errors in four areas which infected his conclusion. It is likely that a different process of reasoning in relation to any one of these areas would have led to a different conclusion.
▪ David Marr – After the High Court’s Decision to Consider Pell’s Case
On 13 November 2019, soon after the High Court ruled that the Pell case would be heard by a Full Court, David Marr went on the ABC TV’s The Drum. By this time, Marr’s position on Pell was more nuanced than usual, but just as confused, as the transcript demonstrates:
David Marr: …This is a case about justice between a man and his accuser. Huge things will happen either way depending on what the ultimate outcome is. We can forget those for the moment. We really can. This is about justice between a man and his accuser.
Ellen Fanning: And to what extent will the High Court have to decide whether the jury was reasonable to believe George Pell’s accuser? Or will they themselves look at the evidence and say: “Well, do we believe this young man”?
David Marr: The High Court doesn’t look at evidence. It looks at questions of law. Of course, the facts matter and they will be looking at the facts to some extent but this is not another jury. So, this young man has been believed by the police, he’s been believed by the Victorian Director of Public Prosecutions, he’s been believed by a jury of twelve, he’s been believed by the majority of the Court of Appeal. But the High Court is not another jury. The jury stuff is over now. What we are looking at now are legal principles and the legal principles of how the Court of Appeal applied itself.
Ellen Fanning: So it, it –
David Marr: It’s immensely complex. And whether or not there really is some great big unresolved legal issue there for the court to determine, they are not themselves yet even certain. They could start this hearing next year sometime. And after a couple of days retire for a cup of tea and come back in and say: “There is really nothing for us here, go home, the lot of you.” That’s possible.
Well, it’s possible that the High Court will say that there is nothing for it to see in the Pell Case. And the opposite is also possible. We just don’t know. What we do know is that David Marr’s hunches on this case in the past have not come to fruition.
Also, Marr declared – correctly – that the High Court would not act as a jury. But, then, the Victorian Court of Appeal did not act as a jury either – in spite of David Marr’s claims to the contrary. For example, it has to give reason for it’s findings. Only a Bush Lawyer would think otherwise.
Also David Marr’s comments on The Drum were incomplete in that he failed to mention that the jury in the first trial had not been able to reach a unanimous or majority verdict. So, at least two – and maybe more – jurors in the first trial did not believe that Pell was guilty beyond reasonable doubt. Likewise one (Justice Weinberg) of the judges on the Victorian Court of Appeal. In other words, at least three – and possibly more – of the jurors and judges who have looked at this case have not been convinced of Pell’s guilt.
David Marr has a law degree. But his coverage of the Pell and related cases suggest he possesses the skills of a Bush Lawyer.
▪ Russell Marks (David Marr’s Pell Researcher) Offers A Different View in The Saturday Paper
A much more considered analysis on the Pell Case was provided by Russell Marks in an article titled “Pell’s appeal to the High Court” which was published in The Saturday Paper (16 November 2019) last weekend. Marks has worked as a criminal defence lawyer and he was David Marr’s researcher for the first edition of his 2013 book The Prince. It is notable that, in the past, The Saturday Paper has been part of the media pile-on against Pell.
Russell Marks argued that the Victorian Court of Appeal did not follow the precedent laid down by the High Court in the 2002 case of M v The Queen. He also pointed out that the High Court had declined to hear an appeal against the Victorian Court of Appeal’s judgment in the Tyrrell Case. Marks concluded his article as follows:
Pell’s appeal will now be heard by the High Court, most likely next year. Its consistent approach to these cases means there is a good chance Pell will succeed. If that happens, the court could acquit him of all charges, in which case his story will become a cautionary tale about the dangers of wrongful convictions. Like everything else about this case, the cultural fallout will be immense.
MWD makes no prediction about the outcome of the Pell Case. Its only advice is not to follow the Bush Lawyer set – starring David Marr and others.[By the way, I note that the ABC did not report Victorian Court of Appeal’s decision to acquit John Tyrrell. It also did not report that the High Court had dismissed the Victorian DPP’s application for leave to appeal against Tyrrell’s acquittal. Quelle Surprise! – MWD Editor.]
LOUISE MILLIGAN’S VILE ABUSE
In his Weekend Australian column last Saturday titled “Activist reporting to fore again in Pell appeal comment”, Gerard Henderson made some considered criticisms of Louise Milligan and David Marr while quoting favourably from the statements of Chief Judge Peter Kidd (in The Queen v George Pell) and Justice Mark Weinberg (in George Pell v The Queen). His article warned against the tendency of some Pell antagonists to believe that Pell should be held collectively responsible for the crimes of clerical child sexual abuse committed by Catholic clerics over the years.
On Saturday 16 November, Louise Milligan tweeted that Henderson was not only a “vile bully” but also engaged in “pedophile protecting”. Later she accused people like Henderson of being responsible for the fact that victims/complainants of child sexual abuse will not go to police. Neither professionally damaging statement was supported with any evidence.
In recent times, Ms Milligan’s tweet has been re-tweeted by such fellow Pell-antagonists as Peter FitzSimons and Derryn Hinch.
Which raises the question. Does ABC management believe it is professional for a senior ABC journalist like Louise Milligan to accuse others – without a skerrick of evidence – of being pedophile protectors?
As documented in MWD, Louise Milligan has consistently refused to answer questions about the scholarship in her book Cardinal: The Rise and Fall of George Pell. However, she feels free to accuse a critic of her work of the heinous crime of protecting pedophiles – without any evidence at all. MWD will return to the topic next week.
Note that in the tweet which alerted Louise Milligan to Gerard Henderson’s column, Quentin Dempster referred to Henderson as a “self-appointed Pell-Apologetic”. It is not clear what the word “Apologetic” means in this context.
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Until next time.
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