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.