REMEMBERING GEORGE PELL – FRANK BRENNAN

Cardinal George Pell died in Rome on 10 January 2023. After years of fighting the false charges laid by Victoria Police, and subsequently found guilty by a Victorian court, George Pell had those charges overturned by a unanimous verdict of the High Court of Australia. Frank Brennan SJ AO, in an address to The Sydney Institute on 24 January, launched a new edition of Gerard Henderson’s exhaustive study of the campaign against Pell – George Pell, The Media Pile-on & Collective Guilt. Frank Brennan gave an exhaustive summary of the flawed nature of the campaign against Cardinal Pell over years and concurred with Gerard Henderson that the media had played a significant role in Pell’s unjustified condemnation. Gerard Henderson in his reply to Brennan drew attention likewise to the flawed nature Peter McLellan’s Royal Commission into Institutional Responses to Child Sexual Abuse which especially targeted Catholic schools and George Pell, while not investigating even one government school where, subsequently, it has been found many, if not more as a proportion of schools, cases of abuse were committed.

REMEMBERING GEORGE PELL

FRANK BRENNAN

I thought and hoped that I had said my last public word on George Cardinal Pell a year ago after his funeral. I was convinced to write the obituary for the London Tablet because the editor thought that, given the history of dealings between the late cardinal and me, I could walk the fine line between demonisation and canonisation.¹ I contributed to the commemorative issue of The Catholic Weekly. I gave one interview outside St Mary’s Cathedral as the security people were clearing away the temporary fencing which separated the protesters from the worshippers. I then delivered one address about the trials and appeals of the cardinal. In part, with that address, I was wanting to publish my letter to Pell between the first and second trials when I first succeeded but ultimately failed in trying to convince him to give evidence at his second trial.² He had written in his Prison Journal:

Frank Brennan was always keen for me to be in the box, especially after the hung jury decision.  Eventually I decided I should give evidence, despite the entire legal team and my own advisers being opposed. Terry Tobin came around to my point of view. I only decided not to take the stand after the prosecutor had dealt with Charlie Portelli and especially Max Potter. I was so cross with the treatment they both received, I was frightened that my hostility might turn a majority for acquittal into a split decision. The basis of my reasoning was quite wrong.³

As far as I was concerned, I did not think I could say anything further that might be useful, wanting to avoid any ongoing hurt to victims of child sexual abuse and bona fide complainants.  But now the relentless scribe of Australian media shortcomings and the failings of the Victorian criminal justice system, Gerard Henderson, has published a new edition of his Cardinal Pell, the Media Pile on and Collective Guilt. Gerard has graciously asked me to launch the new edition before he has the last word here at the Sydney Institute. I am pleased to honour Gerard by accepting the invitation and I am pleased to add my own remarks in relation to the larger than life George Pell a year since his death.

Even George Pell’s great admirer and disciple Bishop Peter Elliott who was at Oxford with him admits that George was more an historian than a theologian. I visited Oxford some years ago and took the opportunity to read George’s 1971 D. Phil thesis: The Exercise of Authority in Early Christianity from about 170 to about 270. It’s all there. Which ecclesiastical leader comes to mind in our era when you hear these words from the thesis?:

This study examines the changing patterns of authority both within and between the local Christian communities at the end of the second century and during the third. Amid the general tightening of Church discipline, the most significant development is the expansion and consolidation of a ‘monarchical’ episcopate rather than the monepiscopate. A monarchical bishop is distinguished from one of the latter type by a greater control over the local congregation, a universal acceptance within his community of his position as chief teacher, having the last word on questions of orthodoxy, and the ability to act without the approval of  his clergy and laity.⁴

As orthodox and heretical teachers began to develop a Christian theology during the second century, the teaching role of the clergy (bishops and presbyters) was brought under severe pressure. The bishops led the fight for orthodoxy, characterised their opponents as intellectuals, and channelled popular feeling for their position by appealing to the simple, traditional, oneness of faith against the speculations and extravagances of their opponents.

…

The tension was greatest in the intellectual centres, as there is less difficulty in seeing the bishop as chief preacher than in seeing him as having the last word on theology proper. By the middle of the third century, there is still opposition to episcopal decisions, but not to the bishop as chief teacher.⁵

In his concluding chapter Pell wrote:⁶

Christianity was not primarily a theology, but a saving faith and a Church in which unity and uniformity were necessary. Organisation and authority were to cut through the debilitating pluralism in Rome, and outside the city if necessary. Whether this approach was desirable and justified in terms of the Church’s community wellbeing and the required fidelity to the teachings of Christ is not a question to be answered here.

In the added chapter 12 of Gerard’s new edition, Pell’s antipathy to the recent Plenary Council in Australia and the ongoing Synod on Synodality in Rome is detailed, including Pell’s assertion that our Australian plenary council was “largely irrelevant to the preaching of the gospel”. Then there is the posthumously published article written for The Spectator describing Pope Francis’s cherished synod on synodality as “a toxic nightmare” with the preliminary document for the synod being described as “one of the most incoherent documents ever sent out of Rome”.

When I dined in Rome with Pell a month before his death, he was confidently predicting the death of Pope Francis and thus the immediacy of a pending conclave. Though he was too old to attend the conclave, his Roman network was second to none and he was engaged in a series of discussions with likeminded senior clerics who were worried about the diverse range of new cardinals appointed from some of the less notable sees in the world and who did not know each other due to the travel restrictions imposed by COVID. There was a document doing the rounds, entitled “The Vatican Today” and authored by “Demos”- the people. The document was very critical of Pope Francis and his writings, asserting: “Papal writings demonstrate a decline from the standard of St John Paul II and Pope Benedict”. Even worse: “Decisions and policies are often ‘politically correct’.” Gerard typically and rightly acknowledges that there is a variety of viewpoints about how involved Pell was in the formulation of this document. There would be no one better positioned than George Weigel to know how involved Pell was in this exercise. Weigel writes:

Judging from both the text and my conversations with the cardinal, it seems to me likely that the document was the result of conversations among more than a few members of the College of Cardinals. Certain formulations, however, are quite familiar to those who were in regular contact with Cardinal Pell and he seems to have been, on Magister’s testimony, the final redactor of what came out of those conversations.⁷

Pell’s 1971 thesis holds the key to understanding how such a loyal churchman could in his dying days be expressing such strong criticisms of head office and the pontiff himself.

Here in Australia, and outside church circles, Pell is still primarily admired or loathed as the focus of the national media and the Victorian criminal justice system. It’s very heartening to see that retired High Court justice Michael Kirby has endorsed Gerard’s book as “a very good read” observing: “Even if one did not study more than the time interval taken to cross the Cathedral, a very serious doubt was raised as to Cardinal Pell’s guilt. …Effective protections against miscarriages of justice in Australia must be there for all serious cases, even for a cardinal.”

You’ve all heard more than enough of my views about the abuses of the Victorian criminal justice system in this case. As I have previously said, it was “nothing more than an appalling police sting operation protracted by grossly erroneous judicial reasoning by Victoria’s two most senior judges”.

Following Kirby’s lead, let’s look only at the time interval to cross the Cathedral. As Gerard says, “Put simply, Pell could not have been at the scene of the crimes – and nor could the alleged victims.” ⁸

Any of you knowing anything about the case would know that the prosecution and the two erring senior Victorian judges could postulate neither evidence nor even a theory about how Pell and the two boys could be alone together in the priest’s sacristy immediately after the solemn 11am mass. How must the Victorian Chief Justice and President of the Court of Appeal have felt when they read these words in the unanimous judgment of the seven High Court judges:

The principal difficulty with the Court of Appeal majority’s analysis is that it elides Potter’s estimate of five to six minutes of private prayer time with the estimate of five to six minutes  during which A and B (the two boys) re-entered the Cathedral, made their way into the priests’  sacristy and were assaulted. The two periods are distinct.⁹

There was no time or place for Pell and the two boys A and B to be alone together for the 5-6 minutes needed for the described offending to occur. The first period of private prayer time occurred, commencing once the procession moved off from the foot of the sanctuary. No one has ever managed to posit even a theory as to when the second period, the time of the offending, could have occurred. Thus, the need for the Court of Appeal majority to elide the two periods into one, presuming that the offending in the sacristy occurred at the very same time that everyone was processing from the foot of the sanctuary, down the main aisle, and around the exterior of the cathedral. It was as if the cathedral were inhabited not by human beings but by angels able to bilocate.

In his masterful dissent in the Victorian Court of Appeal, Justice Mark Weinberg observed: “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.”¹⁰ With no time or place for possible offending, we move into the realm of fantasy, conjecture and invention. We move well beyond the realm of proof beyond reasonable doubt. You will recall that the second incident described by the complainant was truly preposterous. Weinberg, the most experienced criminal appeal court judge in the country, said “the complainant’s account of the second incident seems to me to take brazenness to new heights, the like of which, I have not seen.”¹¹

After the Court of Appeal decision and prior to the application for special leave to appeal to the High Court, David Marr phoned me to discuss religious freedom because I was sitting on the expert panel chaired by Philip Ruddock and set up by Malcolm Turnbull. At the end of our conversation, he asked me how I thought the Pell case would go. I responded with words to this effect: “David, you know enough about the law to know that only a fool would assure you that the High Court will grant special leave in a criminal case. But I think George will get special leave. And if he does, I think he will get off and win 7 – zip.” David was incredulous: “How can you say that?” “Because, David, there is no one on the High Court who would write the sort of nonsense written by those two in the Victorian majority. So, there will be no one with whom others could agree to such preposterous reasoning.”

The now Chief Justice of the High Court Stephen Gageler was not very interventionist during the oral argument of the High Court appeal but it all got too much for him when the Victorian DPP Kerri Judd made yet another attempt to free herself from the prosecution’s claim that Pell and the boys had to be alone together in the sacristy for five to six minutes. There was this damning exchange:

MS JUDD: I do not want to tie myself to the five to six minutes. We say yes, that is open. But also, what I want to make very clear is it is also when that starts. So, you might have your five to six minutes, but there might be the clearing out of the cathedral before that five to six minutes.

GAGELER J: When you say clearing out, are you referring to Potter’s evidence … or are you referring to something else?

MS JUDD: Yes, and I was going to take you to it and I think it is probably easier that I just take you

GAGELER J: He is referring to the procession clearing out.

MS JUDD: Yes, the procession, I beg your pardon.

GAGELER J: Does he mean the congregation? Are you drawing a distinction?

MS JUDD: Okay, no.¹²

If there had not been suppression orders in place during the original trials, no doubt attentive journalists and members of the public could have attended to the impossibility of the prosecution’s claims.

In his new edition, Gerard points out that the original 11 chapters of his book are uncorrected “except for the correction of some misspellings and a few minor changes”. He writes: “No one has advised me of any significant errors of fact or sought changes to the text.”¹³ That includes those who led the media pile-on which Gerard has extensively documented.

It’s useful to highlight the group think that infected especially the authors Lucie Morris-Marr and Melissa Davey leading them into serious errors. After I published my first opinion piece on the Pell trials on the day when the suppression orders were lifted, Melissa Davey, author of The Case of George Pell, posted a series of tweets including¹⁴:

Let’s talk about Frank Brennan shall we, the Jesuit priest who inn (sic) a column has slammed the journalists who spent three months of their lives in the Pell trials. Brennan was barely in the trial. He did not sit through most of the evidence.

She concluded:

It is offensive that he would criticise those who covered the trial in full. I hope the reporters there with me won’t mind me sharing that we checked notes and facts with each other constantly to get it 100 per cent right. There were no divisions between the news orgs. His divisive, inaccurate commentary is harmful and while he has a right to his opinion he has no right to assume the thoughts and attitudes of those who put in the hard yards. None.

As for his comments about journos lacking law experience; some of my colleagues in the trial have covered courts for years. Their knowledge is incredible. We all have high-level legal contacts to ensure we get it right.

As far as I’m concerned Brennan’s credibility on this issue is absolutely shot. He has a right to free speech and opinion. But he has written stuff about the case that is no more than rumour and has shown utter disrespect for the legal process. END.

Morris-Marr, the author of Fallen: The inside story of the secret trial and conviction of Cardinal George Pell, then weighed in:

So, this gets even more ridiculous and amusing. the @australian who didn’t send any staff to the retrial have given a platform for Pell supporter Frank Brennan to slam the experienced senior reporters who were there every single day. Brennan wasn’t even there every day.  Enough.

I had no criticism of Shannon Deery (Herald Sun), John Ferguson (The Australian) or others such as Emma Younger from ABC News, Hilary Whiteman from CNN and Damien Cave from The New York Times. My criticisms had been of the ABC’s Louise Milligan, Davey and Morris-Marr. I had many discussions with Shannon Deery and John Ferguson. I even escorted one of them through the cathedral demonstrating how fantastic was the claim that Pell and the two boys could have been alone together for 5-6 minutes while concelebrants, altar servers, sacristans and money counters came and went.

On 28 September 2020, the US based National Catholic Reporter reported that Melissa Davey had sharply rebutted commentators like me who had claimed that the complainant in the case presented “confused” testimony. Davey was quoted saying: “In the conversations that occurred between journalists and lawyers in the corridors of the courthouse, I never heard anyone who’d been present during the complainant’s testimony say that he had performed badly. Instead, the complainant was described as ‘compelling’ and ‘honest.’” ¹⁵ I responded with a letter to the editor. In my letter, I said:

It would be a breach of the law for any lawyer who was present for the testimony of the complainant to background a journalist on the performance of the complainant. There is no way any lawyer for the defence would have said any such thing. It would be completely unethical as well as illegal for any lawyer for the prosecution to do so. I am so confident of the ethics of the lawyers involved in the case on both sides as to assert that none of them told Davey that the complainant was eloquent, articulate and honest.

Davey quotes from my article of 26 February 2019 in which I spoke about “the complainant being confused about all manner of things”. In that article, I told the reader, “I heard some of the publicly available evidence and have read most of the transcript.”

I joined issue with Davey in my letter, observing:

In her sharp rebuke of me, Davey wrote that she “found it incredible that commentary such as this was being published and broadcast long before transcripts could have been accessed at the court”. She was correct when she stated, “It would take days… to thoroughly review transcripts for a case that ran for five weeks”. Pell’s trial had concluded on 11 December 2018. I had access to the transcript for more than two months before writing my article. Davey could not access the transcript for some time after that. But that was her problem, not mine. I had many weeks to thoroughly review the transcripts.

Having provided my materials to Davey and Morris-Marr I, like Gerard, have never received a word of correction, or dare I say, apology. I agree with Gerard’s assessment: “The avoidance of public debate and discussion about one of the most important criminal law cases in Australian history – especially on the ABC and in Nine newspapers and The Guardian Australia – was mere intellectual cowardice.”

I commend Gerard’s new edition and I endorse the praise expressed by experienced lawyers like Michael Kirby, Doug Drummond and Margaret Cunneen.

Let me conclude with the same words with which I concluded the interview outside St Mary’s Cathedral at the solemn pontifical mass of Christian Burial of His Eminence George Cardinal Pell AC, 8^th Archbishop of Sydney:

I think the great lesson to take home … has been the scriptural lesson of the funeral today, which is about forgiveness, being able to endure suffering, being able to endure the obloquy of people out there in mainstream media and all of that. But be able to stand up for what you regard as truth, what you regard as reconciliation and what you regard as justice. And I think that was a good take home message, hopefully even for those who were protesting…..And we  won’t see the like of (Cardinal Pell) again for a very long time.¹⁷

May George rest in peace.

A note on The Melbourne Response

During the question/discussion period following his address, Fr Frank Brennan made the following comment in response to a question:  

Q: Perhaps we could have a bit of a round-up from Father Brennan where the Cardinal Pell case now leaves the Catholic Church? Is it very wounded? How does it recover?

Frank Brennan: I think undoubtedly, the Church has been very wounded by it. I mean, the whole sexual abuse crisis, of course, has been very wounding for the church and understandably. And properly so. But particularly where there was such a focus on someone who was, if you like, the emblem of the Catholic Church in the public square, then I think that has done enormous harm.

I think the other aspect I raise about, that Gerard touched on, but you’ve got to remember the way Cardinal Pell used to operate. Like when he was made Archbishop of Melbourne, there’s no doubt that Jeff Kennett as premier and McGarvie as governor said, you’ve got to do something about this and clean it up.

Now, George was always one for the top end of town, and it didn’t matter what it cost. And so he went to the top lawyers, and he set up a scheme. And he did it in close consultation every step of the way with the Victorian Solicitor General, and the Victorian Police Commissioner. And they signed off on everything. And they set up a scheme, which emulated the criminal compensation scheme. Sure, paid much less than what we now have. But back then in the 90s, every step of the way, he did in cooperation with the Solicitor General, and with Victoria Police.

And from there, you had a situation where later, there were developments. But, of course,  in 2001 he became the Archbishop of Sydney. And so, the caravan moved on. By 2012, you then had a situation developing with a new load of police in Victoria, including Graham Ashton, who said, “We don’t want to do these deals with the Catholic Church anymore. Fine. Then there was the Victorian parliamentary committee, whereas the Victorian parliamentary committee unanimously said, Victoria Police unfairly distanced themselves from the arrangements that had been put in place.

The other thing to emphasise is this – what Pell set up, when I say he went to the top end of town, I mean, the lawyers who were put on those panels included people like Susan Crennan, who later went on to the High Court, Alex Chernoff, who later went on the Supreme Court and became the governor, David Habersberger, who later became a Supreme Court judge. In fact, most of the ones from the top end of town were not Catholic. And that was deliberately so.

So, he was definitely saying – this has to be cleaned up according to the principles and standards of the day. The principles and standards of the day changed over the next 10 or 20 years. And he then, to some extent, became a victim of that. And that, too, has contributed to a sense that the Catholic Church was not wanting to do the right thing.

Whereas, no matter what differences I was having with Pell back in those days, he was wanting to do the right thing. But significantly, he went, as he often did, and as you know from his 1971 thesis, he went alone. The other Bishops were setting up what was called Towards Healing. He said, “I’m not going to have any of that, you know, all sorts of Bishops committees, etc. I’m going to have something which is Melbourne-based, where the Solicitor General has signed off, the police commissioner signed off, and the payments are in accordance with criminal compensation principles”.¹⁸

Endnotes

¹ After I had sent Pell my article ‘Where has Cardinal Pell’s Case Brought Us in the Australian Church’, Studies: An Irish Quarterly Review, Spring 2021, No.437, pp. 36-51, he wrote to me on 17 March 2021: ‘Thanks for the kind note, and the splendid article. Despite your admitting to a small number of neo-Protestant views (with alas, the potential for others), on my issue you have been consistently just, insightful, and courageous. I owe you a lot, but the long-term health of Australian public life has also been strengthened by your writings. Please God, with the further passing of the years you will lapse closer to full orthodoxy and continue to deploy your considerable skills even more effectively for the Holy Mother Church the Society of Jesus serves. (We all have our secret ambitions).’ ‘Thanks again for all your hard work and congratulations on the justice and insight of your judgments. In the Lord, +CGP.

² See https://quadrant.org.au/magazine/2023/07/cardinal-pell-at-the-hands-of-the-victorian-justice-system/

³ George Pell, Prison Journal, Volume 1, p. 64.

⁴ George Pell, The Exercise of Authority in Early Christianity from about 170 to about 270, D. Phil Thesis, Oxford, 1971, p.1.

⁵ Ibid., pp.3-4.

⁶ Ibid., p. 461.

⁷ https://www.firstthings.com/web-exclusives/2023/01/letters-from-rome-5

⁸ Gerard Henderson, Cardinal Pell, the Media Pile-On and Collective Guilt, 3^rd edition, 2023, Connor Court Publishing, p.455.

⁹ (2020) 268 CLR 123, 163.

¹⁰ George Pell v The Queen [2019]VSCA 186, #1058.

¹¹ Ibid, #1095.

¹² http://www8.austlii.edu.au/cgi-bin/viewdoc/au/other/HCATrans/2020/27.html

¹³ Gerard Henderson, Cardinal Pell, the Media Pile-On and Collective Guilt, 3^rd edition, 2023, Connor Court Publishing, p.  478.

¹⁴ Melissa Davey, Tweets, 8 March 2019.

¹⁵ Joshua McElwee, ‘Up-close account of Pell’s historic trial raises an uncomfortable question’, National Catholic Reporter, 28 September 2020, at (https://www.ncronline.org/news/accountability/close-account-pells-historic-trial-raises uncomfortable-question

¹⁶ In her book The Case of George Pell, Scribe Publications, 2020, Melissa Davey wrote at p.293: ‘Jesuit priest and human rights lawyer Frank Brennan, who attended a few days of the retrial, described the complainant’s evidence as “confused”, even though he had not seen or heard the complainant testify. By contrast, in the conversations that occurred between journalists  and lawyers in the corridors of the courthouse, I never heard anyone who’d been present during the complainant’s testimony say that he had performed badly. Instead, the complainant was described as “compelling” and “honest”.’ .

¹⁷ See https://spaces.hightail.com/receive/EMUbzcresb/fi-3498e831-b32b-4698-bef7-c50ba9e78283/fv-2b58fc8d-a384- 470e-b7d5-

f770e01598b7/0930.0302%20CLR%20BGU%20AFTERNOON%20AGENDA%20IV%20FRANK%20BRENNAN%20SL AB.mov

¹⁸ When George Pell became archbishop of Melbourne in 1996, he took immediate steps to set up the ‘Melbourne Response’ with a series of expert panels to deal with issues of child sexual abuse in the church.  Between 1996 and 2012, the church and the Victoria police worked closely together on protocols dealing with this vexed issue.  The church’s commissioner, the late Peter O’Callaghan QC, worked closely with high-ranking state and police officials to ensure that the Melbourne Response complied with all state requirements.

In April 2012, the Victorian Parliament set up a parliamentary inquiry into the handling of child abuse by religious and other non-government organisations.  It found that “there was no indication at any time before April 2012 Victoria Police told the Catholic Archdiocese of Melbourne that it had any concerns about the Melbourne response”.  In October 2012, Mr Graham Ashton appeared before the committee and expressed serious concerns about the Church’s mode of dealing with abuse allegations.  He was less than honest.

The parliamentary committee reported: “It is clear that Victoria Police paid inadequate attention to the fundamental problems of the Melbourne Response arrangements until relatively recently in April 2012 and that, when they did become the subject of public attention, Victoria Police representatives endeavoured quite unfairly to distance the organisation from them.” (Victoria Parliament, Family and Community Development Committee, Betrayal of Trust: Inquiry into the handling of child abuse by religious and other non-government organisations, Volume 1, November 2013, p.25).