LESSONS FROM THE PELL CASE:  TWO YEARS AFTER THE HIGH COURT DECISION – GERARD HENDERSON

The long running events surrounding the accusations, criminal charges, trials, imprisonment, appeals and eventual exoneration of Australia’s Cardinal George Pell have been extensively covered both in the media and in court documents. However, only with the unanimous judgement of the full bench of the High Court of Australia, in favour of George Pell, could the full story be unravelled. It is a story of injustice, considerable incompetence on the part of Victoria Police, a damning media campaign against Pell over years and a church weakened by a prejudicial Royal Commission into child sexual abuse. To document and further discuss the lessons to be learned from the saga, Frank Brennan SJ, author of Observations on The Pell Proceedings, Gerard Henderson, author of Cardinal Pell, The Media Pile-on & Collective Guilt along with Monica Doumit, Director, Public Affairs & Engagement, Archdiocese of Sydney and columnist with The Catholic Weekly spoke for The Sydney Institute on Tuesday 8 March 2022. 

LESSONS FROM THE PELL CASE:  TWO YEARS AFTER THE HIGH COURT DECISION

GERARD HENDERSON

I endorse the “Statement From Cardinal Pell” that was issued on 7 April 2020 just after the unanimous High Court decision – “I do not want my acquittal to add to the hurt and bitterness so many feel; there is certainly hurt and bitterness enough”.  The point was that George Pell did not commit “the awful crimes” of which he had been convicted. This evening my comments are directed at the Pell Case alone.

I am conscious that all three speakers tonight have come to a similar conclusion while discussing quite different aspects of the Pell Case. That’s not for want of trying. I have been willing for years to discuss the Pell Case with his many antagonists – but this has not been possible.

During the entire period of the Royal Commission, Victoria Police’s decision to charge Pell, the committal proceedings, the two trials and the convictions, I was never invited on to the ABC to discuss the Pell Case or to appear at literary festivals where such Pell-antagonists as Louise Milligan, David Marr, Lucie Morris-Marr and Melissa Davey gave one-to-one interviews with journalists who agreed with them before adoring audiences. This despite the fact that I had written about the case in my Weekend Australian column and discussed it on Sky News and elsewhere.

Since the publication of my book on the Pell Case, it has not been discussed on – or in – the ABC, Network Ten’s The Project, 60 Minutes, The Age, The Sydney Morning Herald, The Saturday Paper, The Guardian Australia, The New Daily or any other media outlets which participated in the Pell pile-on. Not one of the over one hundred journalists/commentators/lawyers criticised in my book has taken issue with me on any aspect of the book. In the aftermath of the High Court judgment there is a great silence on what is one of the most important cases in the history of Australian criminal law.

I am not alone. Frank Brennan’s Observations on the Pell Proceedings has not been discussed on the ABC or reviewed in the Nine Newspapers in Melbourne or Sydney.  Likewise, Keith Windschuttle’s The Persecution of George Pell – except for one interview on Radio National’s The Religion and Ethics Report.

In short, members of the Pell pile-on will not engage in any reconsideration of the Pell Case – despite the historic 7-Zip decision of the High Court quashing Pell’s convictions. In my view, this is an instance of intellectual cowardice – in certain circumstances censorship is the more appropriate term. ABC presenters and producers, for example, have “cancelled” commentators they do not want to hear on the matter.

Tonight, I thought I would look at the proceedings and findings of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Royal Commission’s findings with respect to Pell were released during the early morning of Thursday 7 May 2020 – a month after the High Court judgment. They covered the Catholic Diocese of Ballarat (Case Study 28) and the Catholic Archdiocese of Melbourne (Case Study 35).

The critics of Pell – whose comments on and after 7 April 2020 suggested that they did not accept the High Court decision – embraced the Royal Commission’s findings with glee. For example, at 10.19am on 7 May 2020, the ABC’s Louise Milligan tweeted that the Royal Commission had comprehensively rejected Pell’s evidence – her analysis was immediately embraced by The Saturday Paper’s  Paul Bongiorno. Yet the Royal Commission’s findings on Pell amounted to many pages – and could not have been comprehensively read, let alone considered, in such a short time frame.

The Royal Commission was presided over by former judge Peter McClellan QC – with Gail Furness SC as Counsel Assisting. An objective reading of the transcript of the hearings and the Final Report reveals that both Mr McClellan and Ms Furness were hostile to Pell. No other person in Australia was so targeted by the Royal Commission as Pell. Pell spent 19 hours over four days being cross-examined from Rome concerning Ballarat and Melbourne – and another 17 hours (over two separate appearances) on other matters. 36 hours all up.

The Royal Commission declared that its findings would be consistent with the precedent laid down by the High Court in the Briginshaw Case – that is, the “reasonable satisfaction” test.  This entails that the more serious the allegation – the higher level of proof required before a finding amounting to “reasonable satisfaction” of an event having taken place is made.

The Royal Commission did not apply this standard with respect to Cardinal Pell – in spite of the enormously serious allegations he faced, namely covering-up child sexual abuse. Yet “reasonable satisfaction” with respect to such serious allegations requires a high level of proof.

As I document in my book, there was no verbal or written evidence against Pell.  None whatsoever. That’s why the Royal Commission found that it was, variously, “inconceivable”, “implausible”, “untenable” and “unlikely” that he did not know about clerical child sexual abuse. This is not proof of any standard – including the Briginshaw Test. Such vague words are frequently weaponised to cover-up a lack of evidence.

One example illustrates the point with respect to the notorious pedophile Gerald Ridsdale, who has been in prison since 1994.

Without witnesses or documentary evidence and in the face of evidence supporting Pell, the Royal Commission found that Pell was present at a consultors’ meeting on 19 July 1977 when Ronald Mulkearns, the Bishop of Ballarat, said that Ridsdale was sexually assaulting boys. The Royal Commission also found that Fr Madden, who was at the meeting, would have been told about the offending. This appears at Page 267 of Case Study 28. However, earlier at Page 74 of the same document, the Royal Commission accepted that Fr Madden did not know that Ridsdale was a pedophile until 1988 – over a decade after the July 1977 meeting.

This kind of inconsistency would have required a re-write, or maybe result in a failure, in a first year Law School essay. But it appeared in a Royal Commission finding – which cost around $350 million and was replete, at any one time, with hundreds of staff. There was another error of this kind. In short, the Royal Commission’s findings, with respect to its most prominent target, were not properly fact-checked.

These fundamental errors concerning Pell, along with others, cannot be challenged or corrected since there is no right of appeal against the findings of a Royal Commission or similar body. Before he changed his mind, Peter McClellan in earlier years was a strong critic of royal commissions for this very reason.

There was also a denial of due process. The Royal Commission found that, when Archbishop of Melbourne, Pell failed to act quickly enough concerning the pedophile priest Fr Bill Baker. In fact, Pell fired Baker within a day of receiving a negative report on him by Peter O’Callaghan QC. Yet Pell was not asked any questions about Baker by Gail Furness SC during the many hours he appeared before the Royal Commission and he was not given the opportunity to respond to its adverse draft findings about his handling of Baker. This was a clear denial of due process – against which there is no appeal.

The Royal Commission found that some 60 per cent of those who complained of child sexual abuse – most of which related to the period of the 1960s and 1970s – in a religious institution were in Catholic institutions. But it overlooked the fact that, at this time, the Catholic Church ran its own education system – along with numerous orphanages, hospitals and the like. In other words, around 80 per cent of children in religious institutions at this time would have been in Catholic institutions.

This suggests that a child in a religious institution in the 1960s and 1970s would have been safer in a Catholic than in a non-Catholic religious institution. When I asked Robert Fitzgerald, a member of the Royal Commission, about this he said that he and his colleagues had made no prevalence studies of this kind. He then avoided the question and, soon after, went into off-the-record mode. In short, Mr Fitzgerald refused to address the issue.

Due to its overwhelming focus on the Catholic Church – and, to a lesser extent, the  Anglican Church – the Royal Commission let many a government institution off-the-hook. In particular, State police forces and government education departments.

Victoria Police knew that Monsignor John Day and Fr Gerald Ridsdale were sexually assaulting boys in the Ballarat Diocese as early as circa 1972 and circa 1975 respectively. But Victoria Police did nothing about this – and even forced an honest policeman, a Catholic named Denis Ryan, out of the force for wanting to prosecute Day. Mr Ryan did not receive an apology from Victoria Police until 2016 and was not compensated until 2018. The Royal Commission made no specific criticism of Victoria Police concerning its dangerous, unprofessional and incompetent handling of the Day and Ridsdale cases.

And then there is the matter of government schools. The Royal Commission paid scant attention to historical child sexual abuse in government schools. It conducted a total of 57 Case Studies – including 16 related specifically to the Catholic Church.  But the Royal Commission did not conduct even one case study into government schools. Not one. However, we know that sexual offending against children was rife in some government schools and some teachers were moved from school to school.

The Royal Commission conducted only one case study in Tasmania – concerning The Hutchins School, an independent boys school with an Anglican background – and completely ignored the government sector. In August 2020, the Tasmanian government set up the Independent Inquiry into the Tasmanian Department of Education’s Responses to Child Sexual Abuse. It found cases where the Department had moved pedophiles from government school to government school between the early 1970s to the 1990s. This issue has been widely covered by The Mercury in Hobart.

And then there is the St Andrews Hostel Katanning – an institution run by the Western Australian government as a hostel in Katanning for school children from nearby farms and small towns. For 15 years, the pedophile Dennis McKenna assaulted boys. An inquiry by The Hon. Peter Blaxell QC, a retired judge, in 2012 found that McKenna’s offending was widely known at the time by public officials and others but no one did anything about it. The case is documented by Maggie Dawkins in an article titled “A 26-year Whistleblower Journey” which was published in the January 2019 issue of Whistleblower.

I understand that Mrs Dawkins asked Peter McClellan that the Royal Commission inquire into Katanning scandal. However, he and his colleagues decided not to undertake a case study into this government institution. The only case study the Royal Commission conducted in Western Australia involved Catholic orphanages and schools.

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The Royal Commission’s failure to undertake case studies into government institutions or the media industry – along with its soft handling of State and Territory police forces – played a key role in creating the impression that this was a royal commission into the Catholic Church in general and Cardinal Pell in particular.

Most media institutions and most journalists who covered the Pell Case were hostile to the cardinal. The Royal Commission, in its own particular way, contributed to the Pell pile-on and to the atmosphere of collective guilt. Namely the view that, somehow or other, George Pell carried a responsibility for the crimes of others.  In such an environment, the possibility of the accused receiving a fair trial was remote to say the least. Two years ago, the High Court resolved this matter – to the long term benefit of the Australian legal system.

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