Pell and the Failure to Testify

I write this in haste, on a train using a phone. Not ideal. But here goes…

A number of people are raising the reasonable question of why Cardinal Pell did not take the stand at his trial to testify in his own defence. Some, not all, suspect that his failure to do so implies he might be guilty, or that it makes him look guilty.

A few considerations might guide our assessment of the failure of Cardinal Pell to testify.

The trial was essentially one man’s word against another’s. A good defence barrister would want to focus on other evidence.

If Pell had taken the stand, it might have looked as if it were a contest between a powerful man of high reputation against a small victim. It would not be a good look in the current climate.

Moreover, it is known that before the trial the defence team thought it would not even reach the stage of jury deliberation; the evidence should collapse under the weight of its own absurdity.

Given that view, why put the defendant on the stand, especially given the fact that a good prosecutor could possibly get the defendant to say something that could be construed in a way damaging to his defence? One false step, once made, cannot be taken back nor can the impression made on the jury. For example, occasionally a judge will direct a jury to ignore a piece of evidence or a segment of testimony. That is, psychologically speaking, almost impossible. While the jury may not use such evidence to inform their verdict, they cannot easily banish the impression that evidence may have made on them. Thus, it is better to avoid the risk if possible.

Some argue that Pell should have insisted, that an innocent man would want to declare his innocence. Yet, his innocence is technically, supposedly, presumed. It did not need to be asserted. It is the datum that must be disproved beyond reasonable doubt by the prosecution, not a claim to be proved by the defence.

Moreover, due to the kind donations of others, a professional of high repute, a Queen’s Counsel no less, was retained to conduct the cardinal’s defence. In light of the above, he clearly would have advised Pell not to risk taking the stand and being bamboozled by a clever prosecutor. It would have been brave, even arrogant, to disregard the advice of the professional for whose services others were paying.

Mr Richter QC made a correct assessment of the objective worth of the evidence against Pell. He made a serious mistake in disregarding the subjective effect of the jury having heard only the complainant’s testimony. Perhaps he was too sure of himself. But this is 20/20 hindsight, and rather too late now.

Mr Justice Weinberg QC provides considerable grounds for considering Pell’s conviction unsafe. The cardinal must appeal to the High Court in Canberra. He busy do this not only for his own sake, but for the sake of all clergy. If this conviction stands, no priest is safe.

#prayersforpell

15 thoughts on “Pell and the Failure to Testify

  1. Those are indeed the arguments of worldly wisdom. Even a bishop might be in awe of his top lawyers. Nevertheless, as I posted before, it was a disobedience to Christ’s assurance to each of us that the Father will give us the words to say if we are dragged to trial, and I’m disappointed Cardinal Pell did not listen to his Lord rather than his lawyers.

    The two appeal judges could conclude that the accuser was a compelling witness to the truth, having never heard Pell speaking in an equally or probably more compelling way.

    But all this is foreseen by the Father, and He will be glorified through the Cardinal’s sufferings, mistakes and all.

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  2. Four thoughts:
    1. “Take the stand” is a terrible Americanism. In the English common law world, witness give evidence and do so from a witness box.
    2. At least in England, and unlike in a civil action, a defendant who at the close of the Crown’s case makes a submission of no case to answer (i.e., that a properly directed jury could not properly convict on the basis of the evidence led by the Crown) does not disentitle himself from giving evidence if the submission of no case to answer fails. Thus a defendant’s counsel can make the no case to answer application (obviously in the absence of the jury, who will not even be told that the application is being made) and if it fails then proceed to call the defendant to give evidence.
    3. Today in England a jury may legitimately draw an adverse inference from a defendant’s failure to give evidence (Criminal Justice and Public Order Act 1994, section 35). I do not know what the law in Victoria is in this regard, but even before 1994, it was rare for a defendant not to give evidence.
    4. It is of course possible that Cardinal Pell was advised to give evidence but declined to do so.

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    1. I don’t care about Americanisms.

      My fear was that a failure to testify dues indeed allow an adverse inference to be drawn

      My understanding, from reasonably reliable sources, is that Pell did not decline to testify.

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      1. Anonymous lawyer is correct in what s/he says about the law. What maybe missing from the number of posts on your blog about this subject is an understanding of the way in which the decision to give or not to give evidence in a criminal trial is reached.

        In any criminal trial, whether in England and Wales or in Australia, there are two fundamental decisions which are for the defendant and the defendant alone to make. The first is how to plead. The second is whether to give evidence or not.

        Now lawyers will, of course, advise their clients on both of these questions, but they remain decisions for the defendant.
        A decision not to give evidence has potentially serious consequences as you rightly observe. A defendant who does not give evidence runs the risk of having an adverse inference drawn against him or her. The adverse inference to be drawn against a defendant who does not give evidence is an inference that they are guilty of the offence with which they have been charged. There are potentially very serious implications for a defendant who does not give evidence if the jury decide to draw such an inference. So any advice about whether to give evidence has to be weighed in the light of that risk.

        There can be numerous reasons why a defendant might be advised that on balance it would be better to risk the inference rather than give evidence. You identify one of them, namely that the defendant will risk damaging their own case by giving evidence, there are other reason too.

        My point here is that it would be an error to assume that this decision was made for the defendant by his lawyers. It cannot be, it must be the defendant’s and the defendant’s alone. My second point is that it would be unwise to speculate about why the defendant was advised not to give evidence. Indeed, given that such advice is privileged it would be unwise to speculate about what advice he received on this point at all. He may have been advised to give evidence and refused for his own reasons. Final point is this, no lawyer can stop a client from giving evidence in their own defence if they wish to do so. If the defendant does not give evidence it is because they have chosen not to do so, fully cognisant of the risks that such a course of action entails.

        Liked by 1 person

    1. Gareth, welcome to the combox! Thank you for the information in how to write to Cardinal Pell in prison. For some reason I did not cotton on to the fact you have a new blog after you ended your wonderful donkey-focused blog. Now rectified..

      Also, I had heard that it is better not to include titles on envelopes when writing. I am not certain that this is valid but some may want to be more discreet in addressing the envelope in order to prevent unnecessary delays in delivery to Cardinal Pell.

      Pax!

      Liked by 1 person

    2. As every lawyer knows, an accused person is never obliged to testify. The entire burden of proof falls on the Prosecution and never shifts to the Defence. Cardinal Pell does not have to prove his innocence; it is for the Prosecution to prove his guilt. Cardinal Pell can still take his case to the Supreme Court in Australia and,one way or the other, people of good will must surely wish him well.

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  3. Much has been written in regard to the Cardinal’s failure to testify on his own behalf and one has to wonder if there may have been a presumptive opinion relative to his guilt or otherwise from those responsible for rendering final judgment.
    None of us -other than those intricately involved will ever see the full transcripts of this case, however the apparent lack of consideration to a great many facts presented by the defence, leads me to ponder the true evaluation given to rendering a decision. Two of the judges came across as almost dismissive in tendering a relatively short summary as the basis for their adjudication with the third independantly submitting thorough detail -the reasons why this case should be discharged.
    In some sections of media Cardinal Pell has been seen to be arrogant and distant when confronted with details,particularly the initial published details of his interview in Rome with Victoria Police relative to the proposed charges, which may have been potentially detrimental to his cause. Perhaps this is the reason why he or his advisers elected not to testify- one can only speculate.
    The one unassailable fact however is, that this case has been a most blatant witch-hunt, potentially the most significant in the history of Victorian Law and will have massive ramifications upon all future processes.
    I pray that the Cardinal will survive this horrendous shock to his being and witness his good name cleared – “surely justice must win out in the end’.

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  4. Thank you, Fr. Hugh: the way to address Cardinal Pell on the envelope is quite a useful practical point.

    By the way, thanks for your kind words about my blog. The original Brother Lapin’s Pilgrimage blog morphed into equusasinus.net as I became more settled into a sedentary donkey lifestyle! I would not presume to call my blog a “Catholic blog” – as I once did – for the simple reason that it is no longer listed by Eccles. It’s a bit like losing your Michelin star rating. 🙂

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