Witness: An Investigation into the brutal cost of seeking justice
by Louise Milligan
Hachette Australia 2020
Reviewed by Gerard Henderson
The front cover of Witness describes the author as a “Walkley award-winning journalist and bestselling author of Cardinal’”. The full title of ABC TV journalist Louise Milligan’s first book is Cardinal: The Rise and Fall of George Pell (Melbourne University Press, 2017). Witness, Milligan’s second book, does not mention that all the allegations made against George Pell in Cardinal were either (i) not proceeded with by Victoria Police, (ii) dropped by the Victorian Director of Public Prosecutions, (iii) abandoned by the DPP following a judgment in the Victorian County Court as to the admissibility of evidence or (iv) quashed by a unanimous decision of the High Court of Australia.
Shortly after the publication of Cardinal in 2017, Cardinal Pell was charged by Victoria Police with 26 counts of historical child sexual abuse with respect to nine individuals (one of whom was dead and had told his parents that he had never been the victim of a sexual assault). Not one of the charges could be sustained – although Pell spent 405 days in prison for having been found guilty by a jury in a re-trial of five offences with respect to two males (one of whom was deceased).
In spite of this, Milligan makes clear in Witness published in 2020 that she believes that Pell was guilty of offending with respect to all complainants – she calls them “victims”.
Louise Milligan on Louise Milligan
The back cover of Witness, contains the following comment:
Throughout her career charting the experiences of people who have the courage to come forward to police and then look to find justice in court, Milligan has watched how witnesses are treated (or, too frequently, mistreated) in the courtroom. They have described to her how they relive the associated trauma, often years later. Then, she saw this first-hand when she became a witness and was cross-examined herself in the trial of the decade, R v George Pell.
This brief paragraph contains two errors. The trial (and re-trial following a hung jury) of the decade took place in the County Court of Victoria and was called Director of Public Prosecutions v George Pell. Milligan was not a witness at this trial. Rather, she gave evidence at the committal proceedings in the Magistrates’ Court of Victoria in a hearing that was called The Police v George Pell. The DPP declined to prosecute Pell and this was done by Victoria Police. The Police v George Pell was not a “trial” – it was a committal proceeding.
In other words, Milligan’s experience in The Police v George Pell – where she was cross-examined by Robert Richter QC – is in no way similar to that of a complainant in a sexual assault trial. For the obvious reason that Milligan was not being cross -examined with respect to what she claimed has happened to her – but rather with respect to what a complainant had told her about his alleged assault in the mid-1990s.
In her Prologue, Milligan writes:
My experience as a witness was illuminating, traumatic and, ultimately, politicising. This book recounts that experience but it is not about me. It is about and for the people I have come to know who wanted to tell their story about men, some in the highest echelons of power, only to be met with a paternalistic, disappointing and bruising system that often made them regret their decision to come forward.
In fact, Witness is very much about Milligan – as is evident in the first (over-written) four paragraphs:
You don’t sleep the night before that first day in court.
You spend it tossing and turning, bathed in a slick sweat you had never felt before, glistening like a pallid chicken about to be shoved into the oven and roasted.
You vomit. Your heart feels so close to the palm of the hand that’s clasped to your chest that it might jump out and tumble off the bed, still pulsing in the moonlight.
Your mind spins, processing and reprocessing questions you might be asked, retorts you might deliver, then remorse that those retorts might sound too much.
And Witness also ends with the focus on its author. In her final chapter, Milligan writes that, after giving evidence in the Magistrates’ Court:
I lay in my bed the next day, and I could not move. I couldn’t move. I couldn’t get up to get a glass of water…It was extremely traumatic, extremely. And I held my own. Right? So imagine what it’s like for someone who doesn’t have the ability to hold their own?
There is more of this elsewhere in Witness. At Page 162 she recalls the night before her appearance in the Magistrates’ Court.
…the night before was surreal and deeply distressing. I felt suspended from the corner of the ceiling, looking down on my body as I tossed and turned like sheets in a front loader, unable to relax, unable to sleep, dreading, dreading, dreading. And all the while thinking, thinking, thinking: “Don’t let those guys down.”
Then at Page 163 there is a reflection on the lead-up to the court appearance:
You make your way to the event that you have been dreading encased in a sort of Perspex bubble. Head pressed against the cold glass of a taxi window, eyes gazing out at the grey city zooming past. The leaves are starting to turn. Your husband grips your hand, his eyes keep darting at you, trying to make small talk. He said “Sweetie” a lot. You smile weakly. You feel like you’ve swallowed a battery.
And then at Page 225 the author covers the following morning:
By the next morning, you wake to feel like a Mack Truck has powered through the walls of the room and flattened you. Every single bone in your body aches in the way it does when you have done a particularly gruelling workout for the first time in months. You lie, unable to get out of bed. Your mouth feels glued shut. Your body hums with a strange, invisible trauma….
There is more of this. Much more. And yet Louise Milligan claims that Witness is not about her.
Milligan was cross-examined by Robert Richter QC in the Victorian Magistrates’ Court for a full day on 27 March 2018. The transcript of proceedings is a publicly available document. Reading the transcript, it was evident that the feisty Milligan held her own with the feisty Richter. Also Magistrate Belinda Wallington appears to have been supportive of Milligan and somewhat dismissive of Richter. And Milligan was represented in court by an in-house ABC lawyer. Witnesses in criminal trials do not have their own legal representation.
Louise Milligan on Cardinal George Pell
After declaring that Witness is not about her, Milligan goes on to claim that it is not about Cardinal Pell. At Page 145 the author writes:
But this is not a book about Pell. This is a book about the experiences of witnesses. And through my experiences with the complainants against Pell, I found myself becoming a witness too.
My interlocutor in the Pell committal proceedings was to be Robert Richter QC. At this point I want to be clear that the story that follows of my encounter with Richter as a witness isn’t about him as an individual. It’s about him as an advocate in court for his client, employed to provide the best defence be believes possible. But in doing so, he adopted “old school” tactics that I find deeply troubling. The question throughout this book remains as to where the balance is to be struck between the rights of defendants and the rights of witnesses – and of complainants in particular.
In fact, Witness is a book about Pell. Milligan uses her experiences in the Pell committal proceedings to write about how women and men who are complainants are treated by defence counsel in criminal trials. There are 16 chapters in Witness – six of them focus on the Pell case, covering some 140 pages of a 375 page book. What’s more, the first and last paragraph of Witness deal with the Pell case.
Apart from the focus on Pell, Witness deals with the experiences in the criminal justice system of two complainants – Saxon Mullins in Sydney and Paris Street in Melbourne. Towards the end of her book, Milligan refers to these two and other complainants/victims in order to make a point about Pell:
I thought of how all of these people felt, and so many others felt, when the High Court said “no jury, acting rationally” could have reached the conclusion it did to find Pell guilty. I thought about the chilling effect that this pronouncement about a jury – effectively, that they didn’t know their own minds, that they didn’t matter – would have on any person coming forward against a powerful and connected man…. How can this all keep happening? Doesn’t this system warrant change?
Here Milligan strays into the area of collective guilt. The fact is that the Pell case has nothing whatsoever to do with the Mullins and Street cases. Nothing – unless it is believed that Pell should suffer not because of any alleged crimes that he committed but also due to the crimes of others. In his sentencing remarks in The Queen v Pell, Chief Judge Kidd specifically warned about this kind of thinking.
More importantly, Milligan does not believe in the right of a convicted person to appeal a conviction – a concept which is ingrained in the common law. Milligan seems to believe that juries never make wrong decisions. If this is the case, then the appeal process should be abandoned in trial-by-jury cases.
In his dissenting judgment in Pell v The Queen in the Victorian Court of Appeal, Justice Mark Weinberg made the point that juries nearly always get it right – but pointed out that the emphasis was on the word nearly. Justice Weinberg is widely regarded as the leading criminal law jurist in Australia.
Justice Weinberg’s judgment in the Victorian Court of Appeal is one of the most devastating dissents in the history of criminal law cases. Moreover, those who watched – or read the transcript of – the hearings in Pell v The Queen would know that the prosecution case fell apart before the High Court. But Milligan wants her readers to believe that one out of three judges in the Victorian Court of Appeal and seven out of seven judges in the High Court of Appeal got it wrong. However, she has never put forward a scenario as to how the crimes allegedly committed by Pell could have occurred.
In Witness, Milligan writes about Justice Weinberg’s judgment with reference to the charge that Archbishop Pell (as he then was) had groped a 13 year old choir boy during a procession inside St Patrick’s Cathedral after a Solemn Masson a Sunday. She refers to the alleged occasion and makes this comment with reference to:
…Justice Mark Weinberg thinking an allegation of a person, with other people nearby, grabbing a boy by the genitals in an open corridor was taking “brazenness to new heights” in a way that was “implausible”. Ask the women in your life, Your Honour, how often men do this sort of thing to women. It is no surprise that those so inclined might also do it to boys.
Milligan does not mention that all members of the High Court – Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler, Patrick Keane, Geoffrey Nettle, Michelle Gordon and James Edelman – came to the same conclusion as Justice Weinberg, as this extract from their judgement indicates:
…Weinberg JA [in his Court of Appeal dissent] considered that, had the second incident occurred in the way A [the complainant] described it, it was highly unlikely that none of the many persons present would have seen what was happening or reported it in some way. His Honour concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the offence charged in the second incident.
The assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed “in his full regalia” advancing through the procession and pinning a 13 year old boy to the wall, is a large one….
Milligan makes no reference to the High Court’s decision in this instance. Had she done so, it would have required a recognition that three of the seven judges who heard Pell v The Queen were female – delegitimising the claim that Justice Weinberg did not understand this particular charge because he was male. Throughout Witness the author disparages “older white men”, “Anglo Saxon older male commentators”, and “older white male privilege”.
Louise Milligan and the Real Witnesses for the Prosecution
Witness is a hard read. There are 16 Chapters but no sub-headings, no photos or illustrations and no index. Also, at times, a reader has to wade through the prose. However, Milligan has raised important points about how barristers for the defence handle complainants/victims in sexual assault cases – which would have made a study of its own without reference to Pell or herself.
The author has two case studies – Saxon Mullins and Paris Street. The Mullins case turned on consent. The Street case involved the grooming of an underage St Kevin’s schoolboy by an adult man who had an involvement with St Kevin’s College due to an athletics club which had an association with the school. Both cases led to convictions – by a jury in the Mullins case and a magistrate’s finding in the Street case. Mullins was cross-examined by Ian Lloyd QC, Street by Robert Richter QC.
The outcome of the Mullins case was complicated. The accused Luke Lazarus was found guilty by a jury but had his conviction quashed by a judge in a new trial. The NSW Court of Criminal Appeal expressed dissatisfaction with the quashing of the conviction but did not order a re-trial. Lazarus served just under a year in prison before being released early. As mentioned, at issue in this case was the presence or absence of consent.
The outcome of the Street case was that the offender Peter Kehoe was found guilty and sentenced to a non-custodial corrections order. He was placed on the sexual offenders’ register for eight years. Kehoe did not appeal. There was no issue of consent in this case.
The Saxon Mullins and Paris Street matters make for important case studies as to how allegations of sexual assault are handled in Australian courts – with respect to judges, magistrates and juries – along with counsel for the prosecution and the defence and complainants/victims. Especially when consent is an issue – as was the case in the Mullins case.
The essential problem with Witness is that the author brings herself into the story – despite the fact that she has never been cross-examined as a complainant/victim. And then there is the presence of Cardinal Pell in the book despite the fact that – unlike Mullins and Street – he did not even know the other person in the case.
Louise Milligan and the Cult of Personality
It turns out that being called as a witness in the Magistrates’ Court was not the only trauma to face Milligan. In the lead up to the trial of The Queen v Pell in the County Court, Pell’s defence team made efforts to obtain access to the sources she had used to report on allegations of Pell offending against choirboys in St Patrick’s Cathedral in 1996-97. Milligan was worried that a judge might rule that she reveal her sources. Since she would refuse to do so, this could lead to a jail term for contempt of court.
It was hypothetical. But Milligan seems to have convinced herself that this was a likely scenario. Needless to say, in the legal proceedings she was assisted by a team of ABC lawyers. As it turned out, when the defence found out that such proceedings would delay the trial by a significant amount, it dropped the application. It so happened that while the matter was in abeyance, Milligan had agreed to appear at the 2018 Byron Bay Literary Festival. This is how she recalls the occasion in Witness:
I had two sessions at the festival. The last one was with legendary ABC broadcaster Margaret Throsby. I wasn’t permitted to discuss anything to do with the allegations about Pell. I talked about the damning history of sexual abuse in the Catholic Church.
Throsby asked in a careful way about the impact of my journalism. I told her and the crowd that, the next day, I was going to have a go to a court to protect my confidential sources. I didn’t identify the case, the court, the accused or even the location. All I said was that “my sources came from a community of people that have been profoundly betrayed by an institution”.
“And I will not betray them.”
There was as standing ovation, I looked out, bleary-eyed, at the crowd, trying to stop my hands from shaking. People were weeping. As I walked off the stage, people gripped my hands and hugged me and told me to be strong, they’d be thinking of me.
This is the declaration of an activist – a journalistic activist. Milligan had become the hero of the Pell-antagonists. From her own account, it is obvious that the audience at the Byron Bay Literary Festival, which is essentially a leftist turn out, would have known that her fight to protect confidential sources involved the Pell case – and that the “institution” involved was the Catholic Church. After all, in 2018 Milligan’s only book was on Cardinal Pell.
The likes of Saxon Mullins and Paris Street are but bit-players in Louise Milligan’s book. The real star of Witness is the author. At Page 244 she tells readers that the Walkley Awards for Excellence in Journalism – which she declares is the “most prestigious for our profession” – had awarded her “the prize for Book of the Year” for Cardinal.
Perhaps due to a lack of self-awareness, Milligan does not state that is a prize awarded by journalists – and that the prevailing view about Cardinal Pell and the Catholic Church among journalists would not be significantly different from that of the Byron Bay Literary Festival set who offered her hugs and provided a standing ovation.
Factual Errors in Witness
Louise Milligan boasts about Cardinal in Witness. Yet she refused to answer questions about her scholarship when Cardinal was first published or to acknowledge the factual errors it contained. In Witness, Milligan asserts that at Four Corners every fact is checked and re-checked. However, on Page 326-327 the author has this to say:
…character references are still used in some child sex offence cases. For example, before George Pell’s convictions were quashed in the High Court in April 2020, a slew of character references were produced to the court – from a university vice-chancellor, from former staff, a head of a charity, and friends. Most famously, one came from former Prime Minister John Howard. Another former Prime Minister, Tony Abbott, also made public statements of support in the media, saying the verdict was “devastating….for the friends of Cardinal Pell” – one of whom was him.
Character references are provided after a person has been convicted and are considered by a judge when handing down a sentence – for example, as to whether to impose a prison sentence and, if so, the term of imprisonment. Character references are provided to courts of first instance – in this case the County Court of Victoria. The High Court did not look at the character references when coming to its unanimous judgment in Pell v The Queen – contrary to the implication in Witness.
In Witness, which was published some six months after Pell’s conviction was quashed by the High Court, Milligan complains about the fact that Tony Abbott said in December 2018 that the verdict was devastating for Pell’s friends. The fact is that they had every reason to be devastated – since Pell was an innocent man.
Milligan spoke to Gavin Silbert QC for Witness and appears to have been impressed by him as a lawyer. He was the Chief Crown Prosecutor between 2008 and 2018 – when Pell was charged by Victoria Police. On 23 February 2021, in response to an email, Gavin Silbert QC wrote to Gerard Henderson in the following terms:
…I have just finished reading The Persecution of George Pell by Keith Windschuttle which is as good an analysis as one could hope to find. We lawyers are used to defending clients and interpret their acquittals as a failure of the prosecution to prove guilt beyond reasonable doubt. I must say, that after reading this I was persuaded that not only was the standard of proof not met, but that Pell was an innocent man.
Louise Milligan – An Activist Journalist Who Believes What She Wants to Believe
Like many activist journalists, Louise Milligan believes what she wants to believe. Her belief about Pell, as documented in her book Cardinal, did not withstand the scrutiny of the Australian legal system. The same belief, unchanged by a unanimous High Court decision, has distorted the thesis of her book Witness.
An investigation into the cost to complainants/victims of seeking justice is an important topic in itself. However, in Witness, Milligan has gone off message by writing about Cardinal Pell and her ultimately unsuccessful attempt to bring about his fall. The result is a flawed, self-indulgent work.