Pell and Justice

THOSE WHO PERVERT JUSTICE TO CONDEMN AN INNOCENT MAN merit a special place in hell. I speak objectively; there can be subsequent repentance, and the mercy of God is unfathomable and works to a divine plan beyond our ken. If one believes truly that Cardinal Pell is guilty then their outrage is comprehensible; yet one wonders if they have taken any time over the evidence, or whether they are motivated by the desire to “get Pell”.

Mr Justice Mark Weinberg QC dissented from the Court of Appeal’s majority judgment and upheld the appeal:

“I am troubled by the fact that I find myself constrained to differ from two of my colleagues whose opinions I always respect greatly,” he wrote.

“That has caused me to reflect even more carefully upon the proper outcome of this application. Having done so, however, I cannot, in good conscience, do other than to maintain my dissent.”

Apparently his judgment takes up 200 pages of the 325 page judgment. I am yet to read it. However it seems that the judges making the majority judgment felt constrained to believe the alleged victim:

But Chief Justice Ferguson and Justice Maxwell accepted the prosecution’s submission that Pell’s surviving victim was a compelling witness, “clearly not a liar”, “not a fantasist” and a witness of truth.

The Age (Melbourne), 21/8/19

In light of the recent travesty of justice and common sense wrought in England by Carl Beech, whom the Metropolitan Police fell over themselves to believe, to the point of misleading a judge in gaining a search warrant; and given that the other alleged victim, now sadly deceased, maintained that he had not been abused by Pell, the majority judges’ stance seems unconvincing.

The Victorian Court of Appeal, from left, Chief Justice Ferguson, Justice Maxwell, and Justice Weinberg

It seems that Cardinal Pell’s defence team made at least two significant mistakes at the original trial. The first, as some have been commenting here, is that Cardinal Pell was not called to give evidence in his defence. This allowed the complainant’s testimony to hold the floor.

The second error was relying on an animated presentation to demonstrate the logistical and physical impossibility of the crimes of which Cardinal Pell was accused. Chief Judge Kidd of the County Court disallowed the animation. Why were the jurors not taken to the cathedral to see for themselves the layout, the nature of a post-liturgical procession to the sacristy at Melbourne’s cathedral, the vestments that Cardinal Pell would have been wearing? If there was a good reason for this I am yet to learn it. It seems to be a spectacular failing in the defence approach.

Instead, in light of inadequate and insufficient evidence to demonstrate the manifest impossibility of the alleged crime, and the failure to allow Cardinal Pell to speak in his defence, the flimsy evidence of the alleged victim was allowed to hold attention. Add to this the prejudicial atmosphere prior to the trial and I begin to see how, possibly, a jury might have been swayed to give credence to the incredible.

Cardinal Pell returns to solitary confinement, the deprivation of celebrating Mass, and I am told, the total absence of access to sunshine. We must pray for him, and those who, for whatever reason, have falsely accused him.

And the cardinal must appeal to the High Court of Australia, an august court outside the borders of Victoria and beyond popular manipulation. To do this is not only for his sake, but for the sake of every priest. No priest is safe now. #prayersforpell

Alexander Downer—former Australian foreign minister and Australian High Commissioner to the UK—on Radio 4 this morning that we must sympathise with the victim. But what if you do not believe, on the basis of the evidence, that there ever was a victim; how can one symapthise with someone whom one believes does not exist?

**update on a related question here**

30 thoughts on “Pell and Justice

  1. Thank you Fr. Hugh. We are devastated. The Vic. Police got the man they hounded for years. They fished for someone, antone , to make an accusation. They rooted around in Rome. After our Cardinal exposed the Mafia use of the Vatican Bank and cleaned things up…P. Francis seems to be ‘done with him’. Forgive me Lord if I judge wrong…but not a peep of support to us – the devastated faithful. Its hard to pray as our hearts weep.

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  2. Your comment regarding the recent cases in the UK when men of honour & probity were wrongly & maliciously prosecuted or investigated should give the Australian authorities much food for thought in the case of Cardinal Pell. Those who I have met who know him will never believe the outrageous charges made against him. May God forgive his peresecutors.

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  3. In what way did the Appeal Court Justices pervert justice ? Cardinal Pell simply joins two other fallen ’eminences’ : His Eminence Herman Groer of Vienna and His Eminence Keith O’Brien of Scotland.

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      1. It was the two Court of Appeal Judges who effectively, by due judicial procedure, declared Pell as condemned by not declaring him not guilty. The unfortunate inference from what you wrote is that their majority decision thereby condemns an innocent man since they alone have the sole function of declaring him either guilty or innocent. Nobody else has a say in that decision.

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      2. My preamble had actually nothing to do with the judges, but with those who fomented the false allegations.

        As to “due judicial procedure”, you make the mistake of equating that with justice. If that were true, there could never be any appeals.

        And you are wrong in law as judges do NOT have the “sole function” of declaring a man “guilty or innocent. Nobody else has a say in that decision.” In fact, the jury determines guilt or innocence, not the judges – they have the say in that decision, and juries have manifestly got it wrong before. If you do not accept that then you live in cloud cuckoo land.

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      3. You are right in saying that it is the jury who determine guilt or innocence. That is at the trial stage. However, we are here talking about the appeal process, which is what you wrote about, and which is for the three Appeal Judges alone where the jury are no longer involved.

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      4. Let’s be clear. The appeal judges did not “condemn”Pell, as you put it, nor was their role to determine his guilt or innocence. Their role was to determine the validity of the appeal on the basis of an alleged deficiency in the “due judicial process”. That one judge clearly and unequivocally found in favour of the appeal strongly suggests the reasonableness of doubts about the original trial. There will hopefully be an appeal to the High Court. This matter is far from over and, like Justice Weinberg, we have a right to dissent from the other judges.

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      5. Father Hugh argues that the minority judgment of Judge Weinberg should be sufficient to displace majority judgment of both Judge Ferguson and Judge Maxwell. I am afraid that is cloud cuckoo land of which he had earlier accused me. Like him, I am moving on.

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    1. Cardinal Pell has been tried and sentenced on no substantiated nor corroborated evidence from the beginning. There you have your answer. Justice Weinberg summary hits the nail on the head and we now hope for an appeal to the High Court of Australia Why Justice Mark Weinberg believed George Pell should go free
      By Adam Cooper
      August 21, 2019 — 3.36pm

      One of the three Court of Appeal judges who heard George Pell’s appeal believes there is a “significant possibility” the cardinal did not commit the child sex crimes he’s in jail for and would have acquitted him.

      Justice Mark Weinberg said he was not convinced by the victim’s evidence and could not exclude the possibility that some parts of the former choirboy’s testimony were “concocted”.

      Justice Weinberg, a former Federal Court judge who presided over the trial of Melbourne’s Bourke Street killer James Gargasoulas last year, said there was a body of evidence that made it “impossible to accept” the victim’s account.

      “From … the complainant’s evidence, it can be seen that there was ample material upon which his account could be legitimately subject to criticism. There were inconsistencies, and discrepancies, and a number of his answers simply made no sense,” Justice Weinberg wrote in his judgment released on Wednesday.

      “An unusual feature of this case was that it depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness. Yet the jury were invited to accept his evidence without there being any independent support for it.”

      After assessing the evidence presented at Pell’s County Court trial last year, Justice Weinberg said he would have quashed the cardinal’s five convictions for child sex offences.

      But he was in the minority. His two colleagues on the appeal bench – Chief Justice Anne Ferguson and Justice Chris Maxwell – found the victim was telling the truth and ruled Pell’s appeal should be dismissed.

      The 2-1 majority ruling means Pell will continue to serve his six-year jail term for sexually assaulting two choirboys at St Patrick’s Cathedral in East Melbourne in the 1990s, when he was archbishop of Melbourne.

      The surviving victim, who is now a father in his 30s, told the jury in Pell’s trial that Pell attacked him and another choirboy in the sacristy of St Patrick’s Cathedral in late 1996, and also separately attacked just him in a corridor early the following year.

      The other choirboy died following a heroin overdose in 2014, having never disclosed the abuse.

      Justice Weinberg was not convinced by the evidence of Pell’s surviving victim, who at one point conceded at Pell’s trial that he could not “definitively say the year” he was abused.

      Justice Weinberg placed weight on the testimonies of church officials who claimed Pell would have never been left alone at St Patrick’s Cathedral and would have been greeting parishioners at the entrance when the abuse was said to have taken place.

      “All of these witnesses were important, but there were some whose evidence was critical,” he wrote.

      “It can fairly be said that their evidence, if accepted, would lead inevitably to acquittal.

      “The same result would follow, even if the only finding that could be made was that their evidence, as regards the events in question, was a ‘reasonably possible’ account of what had occurred.”

      Of the 325-page judgement delivered by the Court of Appeal, Justice Weinberg’s reasons accounted for 200 pages.

      “I am troubled by the fact that I find myself constrained to differ from two of my colleagues whose opinions I always respect greatly,” he wrote.

      “That has caused me to reflect even more carefully upon the proper outcome of this application. Having done so, however, I cannot, in good conscience, do other than to maintain my dissent.”

      Chief Justice Ferguson, in a summary of the Court of Appeal’s ruling, said Justice Weinberg found that at times the victim was inclined to embellish aspects of his evidence, and that it contained discrepancies and “displayed inadequacies”.

      “In Justice Weinberg’s view there was a significant body of cogent and, in some cases, impressive evidence suggesting that the complainant’s account was, in a realistic sense, impossible to accept,” Chief Justice Ferguson said.

      “To his mind, there is a significant possibility that the cardinal may not have committed the offences.

      “In those circumstances, Justice Weinberg stated that in his view the convictions could not stand.”

      But Chief Justice Ferguson and Justice Maxwell accepted the prosecution’s submission that Pell’s surviving victim was a compelling witness, “clearly not a liar”, “not a fantasist” and a witness of truth.

      “Throughout his evidence the complainant came across as someone who was telling the truth,” Justice Ferguson said.

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      1. The other choirboy died following a heroin overdose in 2014, having never disclosed the abuse.

        Not only did he “never disclose the abuse”, he specifically denied ever having been abused.

        But Chief Justice Ferguson and Justice Maxwell accepted the prosecution’s submission that Pell’s surviving victim was a compelling witness, “clearly not a liar”, “not a fantasist” and a witness of truth.

        Someone should tell Their Honours that most people are very bad at telling who is and isn’t trustworthy just from talking with them.

        Liked by 1 person

  4. Let’s be clear. That one of the three Appeal Judges, by disagreeing with the jury verdict, found that there was, in his judgment, a reasonable doubt as to the guilt of Cardinal Pell is correct. However, one doubt of one judge among three judges,cannot override the majority decisions of the other two Appeal judges who expressed no such doubt and who accordingly upheld the jury verdict of guilt.
    Were it otherwise, the majority of Appeal Judges would always be obliged to defer to the view of one minority dissenter. That, unsurprisingly, is not the state of law in Australia or of any other Common Law jurisdiction.

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    1. Who the majority had to defer to the minority opinion? The appeal judges judged the grounds of appeal, not guilt. Justice Weinberg largely accepted the grounds of appeal to the point that he accepted that it could be argued that the prosecution’s case had not been proved beyond reasonable doubt which is, of course, the standard of proof for guilt in criminal law. Justice Weinberg did not judge whether Pell was guilty or not. But Justice Weinberg’s doubts about the prosecutions’s case raises the prospect that the jury could have got it wrong. History is littered with juries getting it wrong.

      You seem to confer an implicit infallibility to judges and juries, which I find disturbing.

      But we are talking in circles now. I am moving on.

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  5. I am sorry to read this post. The failings of Cardinal Pell’s defence team may be just that failings. But the Cardinal would have instructed them. He could have insisted on giving evidence at his original trial. Why did he not do so is for me the main issue, what was he afraid of? Whether the allegations were plausible, and I accept the issues around whether the assaults could have taken place in the way described given the geography of the cathedral and the end of Mass processions, etc. But, the Cardinal chose to allow his defence to run as it did. It leaves me wondering whether perhaps not guilty of these allegations but guilty of others, the Cardinal made a choice we are unsighted on. We must pray for all concerned and remember that we are all only truly answerable to one Judge and do all we can to ensure we are ready for that judgement. Let this matter rest, speculate no further but pray without ceasing (as St Paul directs).

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    1. When other people are paying big money for a top QC and his team, would you refuse to take his advice about how to approach your defence? It is known that Mr Richter thought the trial would collapse and never reach the stage of jury deliberation, so ridiculous did the evidence seem to him. It strikes me that Mr Richter made a big mistake both here, on the animation, on the failure to get the jury to the cathedral, or not letting Cardinal Pell take the stand. But we cannot blame someone for taking the professional advice of a QC whose fees were being met by the donations of well wishers. That, if it had backfired, would have left him open to charges of arrogance. So you see; he was damned if he did, and damned when he didn’t.

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  6. Frankly Fr Hugh it seems as if ‘John’ does not believe in natural justice & you are quite correct in stating that it would have been foolish to ignore the advice of highly skilled (?) lawyers representing him. It is a very true saying that the man who defends himself in a court of law has a fool for a client. IMHO you are right to ban ‘John’. God Bless

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    1. Thank you, David. Though for clarity’s sake, I banned him for dishonestly asserting I was arguing what I had just denied I was arguing. He wasn’t listening to what I had to say, just grandstanding. He can do that somewhere else. Pax.

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  7. Firstly, Fr Hugh, you need to sub-edit your last paragraph. Secondly, and much more worryingly, whilst I do see what you mean, I cannot agree with your rhetorical question: “how can one symapthise with someone whom one believes does not exist?” This borders on the uncharitable. As you well know, the complainant does, indeed, exist. Whether you (and obviously I mean that in the general sense and not you in particular) believe him to be an “alleged” victim may depend on many things. If you believe that what he alleges simply did not take place, and I don’t for one minute believe that it did, it is not necessarily the case that you then have to believe that he is deliberately lying. To make matters even more difficult, even if he was deliberately lying to begin with, it does not necessarily follow that he is now doing so. He may now really believe that it is all true. Carl Beech, to whom you advert above, undoubtedly started out deliberately lying. However, it is entirely possible that in time he became to believe in what he was saying. I simply don’t know in either case as I do not have enough relevant information to form any sort of judgement on that.

    The problem is that mind and memory are complex things. If ten people are in line waiting to be served in the bank and it is held up in front of their very noses, the police will get very different accounts from each of the ten customer witnesses. Even basic details, like how many robbers, what sort of weapons, what they said, accents, colour, distinguishing features etc will vary. It would take far, far too long to try to explain all this but if you, or anybody else, wishes to know more about this I would suggest a quick Google for Professor Elizabeth F Loftus. Distinguished Professor, University of California at Irvine, whose interests include Psychological Science; Criminology, Law and Society, and; Cognitive Science. Prof Loftus is a world rated authority in memory as testimony in the legal process.

    My point basically is this, like you, Fr Hugh, I believe the complainant to be a “self-alleged” but in fact “non-victim”. However, I also believe that he may not simply be in it for the money. In the same way that many attempted suicides are cries for help, quite a few are cries for attention from a deeply damaged individual. In charity, not being in a position to know anything of a certainty, I would have to assume that this complainant is a badly damaged individual crying for help, even if he does not not know that he is doing so, deserving of my sympathy and prayers. And, not being entirely daft, I am fully aware that all this notwithstanding he might very well just be an evil little … well you know what I mean.

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    1. I’m on a train, so this may be messy.

      The last paragraph had been edited, thank you.

      I agree the complainant exists, naturally. That he is a victim for whom I need to pray on that basis I do not accept. That he needs prayers notwithstanding, I do accept.

      I’m not asserting that the complainant is in it for the money. Indeed, on the basis of my knowledge, I would not dare to do so. I do not, however, accept his allegation as submitted to be true. I am not stenting to discern motivation. And, for clarity’s sake, he is not the one I had in mind as being liable to the charge of perverting the course of justice. My first suspicion in that regard centres on the police, notoriously and historically corrupt, a fact which I admit colours my view.

      I don’t believe this should ever have come trial. That it did, and has transpired as it has, I find deplete l deplorable, and clearly there must be a person or persons culpable.

      It is logically conceivable that Pell is guilty. I would bet good money he is not.

      Pax.

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  8. Father Hugh – a couple of comments from me, having read the judgments yesterday. Globally, I agree with the tenor of your piece.
    (1) You say (in relation to your second defence error):
    “Why were the jurors not taken to the cathedral to see for themselves the layout, the nature of a post-liturgical procession to the sacristy at Melbourne’s cathedral, the vestments that Cardinal Pell would have been wearing? If there was a good reason for this I am yet to learn it. It seems to be a spectacular failing in the defence approach.”
    My understanding is that the juries in both trials were given the Cardinal’s vestments exactly as would have been worn on 15th or 22nd December 1996 (there were pictures of these events apparently, so this was possible). Some jurors even tried them on. In the appeal decision, the Chief Justice wrote (at paragraph 146):
    “Having taken advantage of that opportunity [to feel the weight of the alb and ‘assess its manoeuvrability as a garment’] ourselves, we consider that it was well open to the jury to reject the contention of physical impossibility.The alb was neither so heavy nor so immoveable as the evidence of Portelli and Potter had suggested. To our observation, it was well capable of being manoeuvred — while the cincture was firmly tied at the waist — in a way that might be described as being moved or pulled to one side or pulled apart.”
    It is also my understanding that there was a visit to the Cathedral by the jury and by the appeal court judges. At paragraph 33, the Chief Justice comments:
    “we have approached our task by trying to put ourselves in the closest possible position to that of the jury. We have done so by reading the transcript (which runs to approximately 2000 pages), watching some of the oral evidence and attending a view of the Cathedral.”
    The vestments and view of the Cathedral were made on the initiative of the prosecution in this case, and seemingly used well to its advantage.
    (2) Interestingly, Justice Weinberg makes explicit reference to Carl Beech at paragraphs 993-996 of the judgment. He comments (at paragraph 996):
    “the Beech case should serve as a reminder that we are dealing with some of the most serious allegations that can be levelled at any member of this community. Allegations of that kind should always be scrutinised with care by both police and prosecuting authorities.”
    (3) On the first defence error you suggest, I agree more with your follow-up piece on this than with your comments in this piece. There are many reasons why it may not be thought useful for the defendant’s case for him to give evidence. In this case it appears that if the case had revolved around the Cardinal’s word (the powerful, the forceful figure) against the complainant’s (the underdog, the abused), it could have been highly prejudicial to the Cardinal’s case. The defence sensibly sought to focus on extrinsic, objective evidence. The Cardinal may also simply not have been what lawyers call a “sympathetic witness”…
    On the general topic of witness evidence in the case, its worth thinking about how the complainant’s and Cardinal’s accounts were brought into the case. A video-tape of an interview of the Cardinal, during which all the allegations were made to him and he had the opportunity to respond was played to the jury at both trials. The complainant’s examination in chief was taped in advance of the first trial and played to the juries in both trials, and his live cross-examination at the first trial was also taped and played to the jury at the second trial, rather than being live evidence.
    Cross-examination is far more effective on juries when conducted live in front of them – it is a far more engaging piece of judicial ‘theatre’ – and it is hard to escape the idea that this may have been an important factor in Pell’s earlier acquittal. Remember also, that if there is no second live cross-examination, the prosecution in the second trial can address and mitigate the effect of concessions or problems in the evidence that arise in cross-examination from the very beginning of the case, allowing them significantly to strengthen their case.
    (4) A key weakness as I (and, gratifyingly, Justice Weinberg) see it, is that the defence case at trial was “put too high”. That is, the defence case through was not just that the jury couldn’t be sure that Pell had committed the offences, or that is was highly unlikely that he would have had the opportunity or ability to commit the offences, but that it was totally “impossible” for the offences to have been committed.
    This is a very strong statement, and one which, it appears, the circumstantial evidence of the other witnesses (called the “opportunity witnesses”) did not support. They gave evidence almost entirely about what the normal practice of the cathedral was, or what routine procedure was, but significantly (as far as the majority in the appeal decision saw it) they always had to caveat this evidence when it came to the actual dates in question. For example, Potter (the sacristan) and Portelli (the MC) were unable to state unambiguously that on the 15 and 22 December 1996 they did not leave Pell’s side. This is the natural consequence, I am afraid, of the passage of a lengthy period of time and the honesty of these witnesses (see paragraphs 1066 onwards of Weinberg’s judgment for a summary of the prosecution’s approach to this evidence).
    In this context, the prosecution could knock down the strong statement that it was “impossible” for the offending to have been committed. And once they had done so, and the prosecution has established that in fact it was “possible”, the discussion moved straight back to the believability of the complainant with all the problems that this entails. These problems include jury sympathy for the underdog (whether motivated by bias or otherwise), the significant protection that the law of Victoria affords the evidence of complainants in sexual abuse cases, etc.
    As Weinberg comments on the defence’s approach (at paragraph 955):
    “Mr Richter’s submission that the complainant’s account was ‘impossible’ was pitched at that level for effect, so far as the jury were concerned. However, there was a risk that it set a forensic hurdle that the defence never actually had to overcome. The prosecution had to establish guilt beyond reasonable doubt. The onus in that regard never shifted. Something considerably less than ‘impossibility’ was clearly sufficient to create such a doubt.”
    This appears to me to have been THE crucial mistake in the defence case.
    The full appeal judgments can be found here: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/186.html#_Ref17189455

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    1. Dear Brendan,
      Thank you for an excellent and helpful piece of analysis, helped not least by your legal training. As yet I have not been able to read the full judgment so your selected highlights are of great use.
      There is little I can add or comment upon other than to say that I am troubled by the significant use of video evidence. As you point out, there is something about the live-in-the-flesh aspect of courtroom examination that lends it power (and I am sure a degree of terror for ordinary people who find themselves called to testify). Testimony offered remotely in time or space, and without proper cross-examination strikes me as disconsonant with traditional practice, but I speak as a man on the Clapham omnibus.
      I had heard from a retired judge who has been following the case that there was no visit inside the cathedral. Maybe he is wrong. That said, the strange phrasing “attending a view of the Cathedral” is a rather tortured way of saying they visited, if that is indeed the import of the words. I would be interested in any clarification that might be offered.
      The most disturbing point you have raised, and which is new to me, is that the defence set the bar too high by asserting the impossibility of the offence. It suggests supreme confidence in Pell’s innocence; it suggests also a dangerous hubris in the defence strategy. I need to reflect on this further. As you say, this may be far more significant that Pell’s not giving testimony. If true, it would make very sad. It also confirms that Richter’s decision not to lead the appeal was a necessary one.
      Thank you for the time you took on your observations.
      Pax.

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  9. A few late comments. The jury were taken to the cathedral, but in the dead quiet of a weekday mid-afternoon, not in the throng after the Sunday solemn Mass (which, as anyone who has been to one will know, is when anyone who wants to get in the archbishop’s ear without making an appointment will batten onto him).

    Second, Richter QC always tells his clients not to give evidence: first because, in principle, the defendant doesn’t have to prove anything; and second, because it avoids the risk of being led or bamboozled by the prosecutor (as they tried to do, according to Mgr Portelli, with the octagenarian former sacristan). Moreover, the judge is obliged to draw tell the jury to draw no inferences about built from the decision not to testify. (The real problem is whether the jury still did so anyway out of prejudice – we shall never know).

    The most bizarre element is that the appeal court majority, along with the prosecutors and the trial judge, provide a narrative of the so-called offences which relies, in its account of charges 3 and 4, on Pell’s having three hands – look it up if you don’t believe me! One wonders of this applies now to all defendants in Victoria (Yarragrad, as some of us call it), or only to designated enemies of the revolution.

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  10. Just to elaborate a little, there is a lot of romantic guff spouted about juries. One hears horror stories sotto voce about juries ready to convict or acquit on blind emotion or prejudice and unable to grasp basic distinctions like fact/opinion. And juries are the only part of the system not obliged to give reasons or their decisions – unlike in a bench (judge-only trial) where the judge has to give detailed reasons in writing. Bench trials in Victoria were abolished soon after the present hard-left government came to office – reportedly to protect senior Labor and union figures from prosecutions arising out of the Abbott government’s trade union royal commission. (I.e. because they could always get two rusted-on Labor supporters in any twelve.)

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