The evidence suggests that Justice Peter McClennan QC, AM, chairman of the Royal Commission into Institutional Responses to Child Sexual Abuse, has undergone a legal conversion sometime during the past quarter of a century.
In 1991, Peter McClellan QC barrister at law (as he then was) wrote an article titled “ICAC: A Barrister’s Perspective”, in the journal Current Issues in Criminal Justice. This was a critique of the operation of the NSW Independent Commission Against Corruption in particular. However, the barrister extended his comments to cover royal commissions in general.
McClellan wrote: “In recent years there has been an increasing trend in government to invoke royal commissions of inquiry to investigate particular problems. The frequency of such inquiries and the sensational reporting which they have attracted has tended to create a belief in some people that this is an appropriate method of handling any matter of public controversy. This is a view expressed by the press.”
While recognising that “royal commissions may affect great community good”, McClellan argued that they might “cause considerable harm to persons unfairly trapped by the blaze of sensationalist publicity which can be created”. He concluded by maintaining that commissions of inquiry should accept “that persons should only be convicted after due process in the relevant court”.
That was 1991. Last week McClellan presided over Cardinal George Pell’s evidence to the royal commission’s case studies into the Catholic diocese of Ballarat and archdiocese of Melbourne.
What turned out to be almost 20 hours of testimony across four days, via video link from Rome, was Pell’s third appearance before McClellan and his commissioners. Pell also made a personal appearance at the 2013 Victorian parliamentary inquiry in Melbourne.
Gail Furness SC, counsel assisting the royal commission, acknowledged that the Prefect of Secretariat for the Economy for the Holy See did not have to give evidence since he lives in Rome. Pell volunteered to do so from Rome on two occasions over many, many hours. Even so, the cardinal was cross-examined with seeming hostility by Furness, especially on the second day of the hearing. Moreover, McClellan made no effort to temper his counsel assisting’s tone. On brief occasions, he even channelled Furness when addressing questions or statements to Pell.
From the start of the Rome hearings, it seemed that Furness was intent on blaming Pell for covering up any crime committed by any priest or brother if he happened to be anywhere near the vicinity of the offending.
Take the case of pedophile Mildura-based priest John Day, which is documented in the book Unholy Trinity by Denis Ryan and Peter Hoysted. The authors document how Day got away with child sexual abuse because of a cover-up by the Catholic bishops of Ballarat (initially James O’Collins and later Ronald Mulkearns) and the corruption at the time of Victorian police.
Yet Furness’s line of questioning seemed to be an attempt to establish that Pell, who in 1972 was a junior priest at Swan Hill, knew all about the older man Day’s crimes since the Catholic parishes of Mildura and Swan Hill “adjoin each other”. Pell doubted this, stating that he thought “there’s at least Robinvale parish in between”. Correct. The Swan Hill parish is separated from Mildura by the parishes of Robinvale and Red Cliffs.
Now, the royal commission has hundreds of staff and many millions of dollars to spend on research. Yet Furness put a proposition to Pell without checking the contemporary editions of The Official Directory of the Catholic Church or even googling a map of Victoria.
Then there is the case of pedophile priest Gerald Ridsdale, with whom Pell shared parish accommodation for a year in Ballarat East four decades ago. About the same time, journalist Paul Bongiorno shared parish accommodation with Ridsdale in Warrnambool.
Neither man noticed Ridsdale’s criminal activity. This should come as no surprise, since pedophiles are highly secretive and deceptive.
Furness suggested that Pell should have been aware of Ridsdale’s criminal activity when Ridsdale was attached to the Catholic parishes of Mortlake, Inglewood and Apollo Bay. Yet these towns are respectively 125km, 140km and 170km away from Ballarat.
What’s more, communications in the 1970s and 80s were monumentally slower than they are today.
In the event, Furness put it to Pell on a number of occasions that his evidence that he did not know of Ridsdale’s pedophilia was “implausible”.
She repeated this claim with respect to Melbourne-based pedophile priest Peter Searson. Both allegations created widescale media attention.
In legal hearings, the allegation that a witness has given “implausible” evidence invariably is followed by production of an incontrovertible fact.
This did not happen in this case. Furness was not able to produce any evidence that Pell knew of the sexual crimes of Ridsdale and Searson before they became widescale knowledge.
So Furness’s assertion that Pell’s evidence was “implausible” is simply the expression of an opinion. No more, no less. Yet McClellan, who when a judge on the NSW Court of Appeal invariably demanded the highest standards of proof, seemed to accept his counsel assisting’s point of view, which was not based on incontrovertible evidence.
Pell has admitted some mistakes and errors of judgment in his clerical career over half a century. Yet none of Pell’s critics — who are so prevalent at the ABC, Sky News and Fairfax Media — has come up with the name of anyone responsible for clerical, secular or government institutions who acted earlier than Pell did to deal with pedophilia.
The evidence indicates that the royal commission does not understand how the Catholic Church operates.
It is the archbishop/bishop and his vicar general whose will prevails. Pell was never a vicar general and did not get control of a diocese or archdiocese until 1996. He set up the Melbourne Response, in consultation with Victoria Police, within three months of being appointed archbishop of Melbourne by Pope John Paul II.
In view of Pell’s treatment before the royal commission, it is possible that McClellan and his colleagues will make findings against the cardinal. But to do so in 2016, McClellan will have to walk away from his 1991 warning that royal commissions should refrain from “ruminating in public”.