Australia’s High Court unanimously dismissed all charges of “historic sexual abuse” against Cardinal George Pell and yet the New York Times has continued to cling doggedly to its narrative of Pell’s guilt.
In a stunning ruling, the High Court overturned the decision by the Court of Appeals of the Supreme Court of Victoria. In its decision regarding Pell vs. The Queen, the High Court reversed the guilty verdict and “… ordered that the convictions be quashed and that verdicts of acquittal be entered in their place.”
Cardinal Pell was released after spending 405 days in prison.
“I have consistently maintained my innocence while suffering from a serious injustice,” he told the media. “I hold no ill will against my accuser.”
He thanked his supporters and friends, “In particular [I thank] my family for their love and support and what they had to go through; my small team of advisors; those who spoke for me and suffered as a result…” He also thanked his legal team, for “…unwavering resolve to see justice prevail, to throw light on manufactured obscurity and to reveal the truth.”
It is that last line, “manufactured obscurity,” that brings me to the New York Times article reporting on the decision. Mr. Damien Cave, Times bureau chief in Sydney, with his collaborator Ms. Livia Albeck-Ripka, chose for a headline of its coverage of the decision, the following title: “Cardinal Pell’s Acquittal Was as Opaque as His Sexual Abuse Trial.”
This is a bizarre headline, considering that the decision of the High Court was seven to zero in favor of acquittal. A 7-0 victory is considered by most as a clear victory. Imagine the sports writer who reported on a World Cup final that the winning team had an “opaque” victory after crushing its rival 7-0.
Of course, one can imagine someone deeply unhappy with the result of a court case, trying to turn a clear victory into an unclear result. The Times announced its intention to do just that with the following statement: “The world may never be able to assess whether the court’s reasoning was sound.”
The Times quotes the lawyer for the father of Pell’s accuser (accuser A), stating that the criminal justice system had “failed both the choirboys” involved in the case. The Times journalists correctly point out that only accuser A, two decades later, brought charges against the Cardinal; accuser B died before the complaint was lodged in 2015. But the Times fails to point out what the High Court included in its own statement, namely, that in 2001, only five years removed from the alleged incident, accuser B, told his own mother he had never been assaulted by anyone while in the cathedral choir.
The Two Accusations
The first accusation was made by a choirboy—referred to as accuser A in 2015. It alleged that Archbishop Pell had sexually assaulted him and another thirteen-year-old boy (B), members of the children’s choir, in the Sacristy of the Cathedral of St. Patrick in Sydney around 1996-1997. The attack was alleged to have taken place immediately after the conclusion of Sunday solemn Mass.
The second accusation by accuser A alleged that he had suffered a second attack within one month from the first alleged attack. As the High Court noted in its final judgment “(A) was uncertain of the date of each incident.”
The Second Accusation
The plaintiff (A) alleged in this second accusation that after a Sunday solemn Mass and while he was in procession back to the sacristy with the rest of the choir, Archbishop Pell in “full regalia” pinned him against the wall and grabbed his genitalia.
The defense rightly characterized this accusation as bordering “on the fanciful.” For this to have taken place, the Archbishop would have had to break away from the procession, and sexually assaulted “… a young choirboy in plain sight of a number of choristers, including several adults.” To say nothing about all other members of a solemn procession after Mass.
The two justices (Ferguson C.J., Maxwell P.) whose previous decision, against Cardinal Pell in the appellate court was overturned, amazingly argued that the rest of the procession was so intent on completing the procession and disrobing that they had completely missed the assault.
The High Court raised the question, in accordance with the dissent of Justice Weinberg in the appellate court, of the sheer improbability of such an act going completely unnoticed, for the assumption of the “extraordinary sight of the Archbishop of Melbourne advancing through the procession and pinning a 13-year-old boy to the wall is a large one.”
The High Court argued that, in any case, deciding whether the second accusation strained credulity as to its veracity was not even necessary as the “… capacity of the evidence to support this verdict on this charge suffers from the same deficiency as the evidence of the assaults in the first incident.” In other words, no evidentiary facts could substantiate either accusation. Any fair reading of the proceedings shows that the High Court was clear in that regard.
The First Accusation
Regarding the first alleged assault in the sacristy, the High Court argued that a “powerful body of evidence” existed to support the fact that the Archbishop was not in the sacristy at the time of the alleged sexual assaults on either one of the boys. Adding that that there were alibis, “truthful witnesses,” that accounted not only for the Archbishop’s location at the time of the attack but also for the fact that the Archbishop was never unaccompanied during the possible time frame of the purported attacks, or when he entered the sacristy during the said occasion. The High Court further reasoned that the time needed for the first alleged assault in the sacristy was also inconsistent with the facts and was not reasonably allowed by the evidence.
The first alleged attack required that the sacristy be devoid of any witnesses such as other altar boys, other priests, sacristans, for the time needed to carry out the assaults. Prosecution efforts to prove that this window of opportunity for the assault took place were utterly defeated by the facts and direct evidence in the case.
The High Court agreed with Cardinal Pell’s defense and Justice Weinberg’s minority dissent in the previous judgment in the appellate court in Victoria, that the mountain of “compounding improbabilities” in the accuser’s account, “…was contradicted by direct evidence and had been left “unchallenged” by the prosecution. Justice Weinberg had counted ten such improbable things in the accuser’s account.
The writers for the New York Times assert, without foundation, that testimony was murky on all sides. “No criminal trial in Australia’s recent history…” they opine, “… [is] as hard to follow and scrutinize… The case has been a model of opaque operations….”
According to the New York Times reporters, no one could test the evidence as the case “was wholly dependent” on the unseen testimony of accuser A. They then assert that the courts protected Cardinal Pell with a special invisible cloak of secrecy: “Australia’s courts exhibited a penchant for secrecy… that resembled the Catholic Church’s flawed and damaging response to sexual abuse within its ranks…” They further imply that the non-public nature of the testimony of accuser A and other procedures compromised the promise of an impartial rule of law; a strange thing to say as they acknowledge Australia’s laws required that the accuser’s identity be protected. This would have been the case even if the accused had not been a cleric of the Catholic Church.
Although the video of accuser A’s testimony was not shown to the public, the facts of what he testified were made explicit in the arguments of both the defense and the prosecution, as well as in the rationale of the High Court in overturning the previous finding of guilt of the appellate court in Victoria.
The judge in the first trial in fact warned the prosecution against putting too much weight on the demeanor of the accuser in the video. The New York Times reporters seemed to think it all hinged on seeing the accuser testify.
The Times’ statement that the case “was wholly dependent” on accuser A’s testimony is incredibly misleading.
What was recognized by the High Court was that the entire prosecution’s case “was wholly dependent” on the story of accuser A. They had nothing else. All they had was the apparent sincere and truthful demeanor of the accuser. But it was a testimony unsubstantiated by corroborating evidence. Not so for the defense. Pell’s lawyers won this case on factual evidence, alibis, and uncontested testimony provided by 20 of the prosecution’s own witnesses in favor of Cardinal Pell.
The Case for the Defense
There was nothing opaque about this case. In fact, the prosecution had asked for special leave from the judge not to cross-examine most of its own witnesses. They knew that the exculpatory evidence these witnesses had already provided was devastating to their meager case and that any further questioning could sink it.
The High Court in its final judgment spelled out what actually took place: “The prosecution anticipated that a number of its witnesses would give evidence that these practices [Pell greeting people after Mass and always being accompanied] were followed with such strictness that there was no realistic possibility of the offending acts having occurred. In an attempt to confront this difficulty, the prosecutor applied to the trial judge for an advance ruling…” in order to avoid further questioning of its own witnesses, to avoid further “… evidence that was expected to be unfavourable to the prosecution case…”
At the outset the prosecution had already conceded, as the High Court rightly noted, that “In opening his case to the jury, the prosecutor acknowledged that there were a number of seemingly irreconcilable differences between A’s account and the evidence to be given by other prosecution witnesses.” Lacking any rational or corroborating evidence the prosecution was only left with the testimony of accuser A and it was even this testimony that was characterized as problematic.
The High Court noted that the two justices who ruled against Cardinal Pell had also not considered “… in any of the respects in which A’s evidence at trial varied from his earlier accounts, the variation was such as to have required the jury to entertain a doubt as to the credibility and reliability of his account of the offences.”
The High Court in its own judgment cited Justice Weinberg, who “ … considered that there was ample material upon which A’s testimony had… inconsistencies and discrepancies, and a number of his answers “ simply made no sense…” Even “… that A appeared to have embellished his account at times…” Justice Weinberg stated the High Court, “… did not assess A to be such a compelling, credible and reliable witness as to necessarily accept his account beyond reasonable doubt.”
Further, the High Court added that, “The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanor-based judgments.”
The Timeline of the First Accusation
Proving that there actually was a sexual assault in the Cathedral sacristy presented insurmountable difficulties for the prosecution. How did two choir boys abandon the procession completely undetected in order to get back to the sacristy? How did they get past doors to the sacristy, which Mr. Potter the sacristan had testified, were always locked and under his control? How did they gain access to the Mass wine which was also held under lock and key? Many more anomalies would become evident as the accuser shifted his description of the way in which the attack reportedly took place, the dates of the incident, and other aspects of his testimony which did not square with known facts.
Difficulties mounted upon difficulties, for not only did the choir boys have to manage to gain access to all of the above in a manner that accuser A could not explain. In addition, for the events of the alleged assault to have taken place as accuser A testified, it was also required that Cardinal Pell would have had to manage his own undetected escape from the procession, the crowd, his Master of Ceremonies, and undoubtedly the eyes of hundreds of the faithful gathered for the solemn occasion.
Furthermore, accuser A testified that by the time the alleged attack took place, the altar servers in the procession had already arrived to the sacristy. But of course this was not the only problem an alleged assailant would have faced, as on the heels of the altar boys a considerable amount of traffic followed: “… around 50 altar boys … 12 adult male singers; they were followed by the choirmaster, and concelebrant and other priests…” This great majority was destined in a matter of minutes to arrive at exactly the place where the brutal attacks were supposed to have been taking place.
During the trial, undisputed evidence was presented that Cardinal Pell, once outside of the Cathedral, remained at the Cathedral steps accompanied by Msgr. Portelli (Master of Ceremonies) in order to greet the faithful after Mass. The rest of the procession proceeded its march towards the sacristy.
At least one of the dates cited as a possible date of the alleged attacks would have been the first Mass of Pell in the Cathedral as the newly appointed Archbishop of Melbourne. As those familiar with that kind of occasion can imagine, there would have been dozens of priests concelebrating the Mass. Undoubtedly, all eyes would have been on Pell at any of these solemn Masses. It would have been a nearly impossible feat to avoid greeting well-wishers at the end of Mass, let alone to escape undetected back into the sacristy.
Msgr. Portelli (Master of Ceremonies), specifically recalled accompanying Cardinal Pell on the dates in question and his testimony was completely uncontested by the prosecution. Nearly 20 witnesses provided exculpatory evidence and the prosecution never disputed what was effectively strong and powerful alibi evidence for Cardinal Pell.
The High Court also noted, “A further oddity is that A and B did not encounter any concelebrant priests in the sacristy corridor or the priests’ sacristy, notwithstanding that concelebrant priests would be expected to have gone to the priests’ sacristy to disrobe after the procession broke up.”
Exactly where did a procession of dozens of people disappear to during the alleged assault? Conveniently, but without any rational explanation, all those marching toward the sacristy were mysteriously nowhere to be found in the telling of the tale of alleged assault.
Incredibly, accuser A also testified that during the sexual assault the door to the sacristy was open.
The High Court, siding with Justice Weinberg’s acquittal vote in the lower court, articulated the defense’s position as “… the compounding effect of the improbability of events having occurred as A described them in light of unchallenged direct evidence and evidence of practice.”
But the High Court would find the “principal difficulty” with the account of A and the prosecution to be their utter failure to provide a rational explanation of how the attack could have occurred in the time frame the prosecution had established as the window of opportunity for the attack.
The Prosecution’s Narrative
The prosecution’s narrative was that the alleged assault on A and B, took place between the end of the solemn Mass, and before the sacristan and other helpers started clearing the altar of the sacred vessels. Astonishingly, accuser A contended that the alleged attack had taken place after the arrival of the altar boys at the sacristy, and their bowing to the Cross and the start of a flurry of activity in the sacristy, which was likened by one witness to the green room in an opera house. The High Court’s judgment states, “In this Court, the respondent maintained that the assaults occurred after the altar servers had entered the priests’ sacristy and bowed to the crucifix and before the “bee hive of activity” in the sacristy commenced.”
The High Court was unconvinced that the necessary time gap, the prosecution was trying to create for a sexual assault, ever existed. “Nor is there any evidentiary foundation for the conclusion that there was a hiatus between the time when the altar servers completed their bows to the crucifix and the clearing of the sanctuary.”
Now there was also a huge time problem for accuser A and the prosecution’s case taking place outside of the sacristy. Mr. Potter, the sacristan and keeper of the keys, was asked how soon after Mass ended would he open the sacristy in order to start clearing the altar of the sacred vessels and starting the intense activity that would immediately fill the sacristy after Mass. Initially he stated that he would unlock the sacristy “as the procession was making its way down the center aisle while the recessional hymn was being played.” This created an insurmountable problem for the prosecution, for the alleged assault was impossible if there were no gap between the end of Mass and the activity in the sacristy.
Potter would later explain that some of the faithful would walk up to the sanctuary to pray and that he would therefore allow them 5 to 6 minutes for private prayer before starting to clear the altar. The prosecution latched onto this and built their case around these 5 to 6 minutes. The prosecution argued that during the brief pause for prayer after Mass and before the sacristan and others started clearing the altar, the brutal alleged sexual attack on the two thirteen-year old boys had taken place.
Regardless of the amount of time, Mr. Potter would have still been in control of the sacristy and alert to his duties as he was in charge of managing the sacristy and opening the door as the procession was approaching from the outside of the Cathedral.
When Mr. Mallison, the organist and choirmaster, (likely with a good sense of timing), had been asked about the duration of this brief interval for private prayer before things started to be removed from the altar, he replied: “Perhaps… half a minute, a minute, perhaps a minute and a half, two minutes.” In any case, he testified, “… fairly soon after the clergy have left the sanctuary.” (112) That’s it, that would have been the so-called window of time available for a potential attack, 30 to 120 seconds.
The prosecution of course chose to build its case around the 5-minute theory not the 30 to 120 second possibility.
But this was just the precarious beginning of a completely implausible theory being built by the prosecution to desperately make space for an alleged attack.
The 5-minute clock theory was all the time they could fabricate for their theory on an alleged attack. And as Mass ended, the 5-minute clock was ticking. But of course, the attack could not have started right away as the choir boys and Cardinal Pell, were all processing with dozens of others solemnly and quite slowly, towards the outside of the Cathedral. The choir where the alleged victims found themselves, was positioned toward the front of the procession. Cardinal Pell was of course the last one in the procession flanked by his Master of Ceremonies, Msgr. Portelli. And with every step the procession moved further and further away from the sacristy—the one place where all three subjects of the alleged incident needed to somehow be in less than the 5-minute theory of the prosecution.
During the first trial, the jury walked in the Cathedral and timed the alleged route victim A claimed to have taken to escape undetected from the procession and return to the sacristy. It took the jurors about four and half minutes. Therefore, upon arrival to the sacristy, 30 to 90 seconds or so remained on the prosecution’s 5 to 6-minute theory.
Other witnesses testified that they had never witnessed anyone break away from the procession and that it would have been impossible for anyone to do this unseen.
The problems were not over, because the same operation had to be postulated for the Archbishop. He too had to escape undetected, race back to the sacristy, elude Mr. Potter and everyone else, leave in the dust his Master of Ceremonies who would have followed him as well as the entire procession of priests, concelebrants, choir, altar boys, and the rest.
Had the two boys managed to get back to the sacristy, only 30 seconds to a minute were left on the clock of the prosecution’s case for the assaults. But still much more had to take place. For still, as accuser A had testified, they had time for “poking around” in the sacristy. And then even more time for finding Mass wine, normally also under lock as well. And as the testimony reads, A and B then started “swigging wine” in the last 30 to 60 seconds of their five minute theory. All this in such a short amount of time would have been a feat but the alleged offender had not entered into the picture and no alleged offending had taken place.
Though the defense did not bring this up, the leap of faith required to believe that Cardinal Pell managed all of this is magnified when you consider that the alleged attack was not consensual and yet had to be perfectly timed. This was an alleged sexual assault, not a planned meeting. How therefore could Cardinal Pell have known that two boys were in the sacristy? Pell had to rush, in the prosecution’s theory, undetected to the sacristy, but for what reason? He had no idea two boys had allegedly snuck into the sacristy.
Of course, to believe this extraordinary but necessary coincidence borders on intellectual suicide. This is an improbability of the highest order. We know Pell had never met the boys or their families and of course at no point was it ever suggested that they had agreed to meet. How could Pell have known they were there?
Accuser A testified that after they had been drinking the sacramental wine, the Archbishop again, in an unexplained fashion, appeared in the sacristy and proceeded first to reprimand them and then sexually assaulted one boy and then then the other. Simply put, A’s version of events is quite impossible and the High Court unanimously saw that the decision of the appellate court (2-1) against Pell was simply unreasonable. As the defense rightly concluded, there was never a time when A and B and Pell, could have possibly been alone in the sacristy for even 5 minutes. The defense had proven conclusively that the window of opportunity (the time), for the alleged assault had never existed.
Pell was never there; there was never time for any attack, and over 20 of the prosecution’s own witnesses provided exculpatory evidence which the appellate court had erroneously ignored in favor of what they perceived to be the convincing testimony of accuser A.
The truth is that the decision of the High Court in Australia corrected a travesty of justice and unlike the two justices in the appellate court, it easily reasoned its way to a unanimous seven to zero decision to acquit Cardinal Pell.
In the end it was not the High Court’s reasoning, or the facts of the case, or the evidence that were opaque, as the New York Times claimed in its insidious article. What is truly opaque are the intentions and the journalistic ethics of Mr. Damien Cave and Ms. Livia Albeck-Ripka, New York Times’ reporters.
Father Marcel Guarnizo is a Catholic priest who serves in the Diocese of Moscow.