FACTS ON PELL JUST DON’T FIT
CARDINAL George Pell’s defenders suddenly dare to hope the High Court will say he’s innocent — the jailed victim of a scandalous miscarriage of justice. Their hopes soared last Thursday, after Kerri Judd, QC, tried to tell the High Court why Pell really did rape two boys right after Mass.
Judd tried her best, but the headlines for Victoria’s Director of Public Prosecutions after the court’s seven judges had finished with her were terrible.
“Judges grill prosecutor over Pell conviction,” said one. “Prosecution shifts ground on vital minutes,” said another.
No one should accuse Judd of incompetence. I suspect she’s a conscientious lawyer who had to wrestle with an awkward reality: Pell could not have raped those boys when the prosecution had claimed he did.
That’s why Judd seemed to be backtracking: maybe the rapes didn’t take as long as first said. Maybe they started much later.
See, here is her problem — one I argued here last year, after Victoria’s Court of Appeal shockingly dismissed Pell’s appeal in a split decision.
The prosecution back then said Pell raped those boys for at least five minutes in the sacristy at the back of his Cathedral, and during the “five or six” minutes of private “quiet time” for public prayer right after Mass, before altar servers cleared away the sacred vessels used in the Mass and stored them in that same sacristy.
Yet during those “five or six minutes”, Pell was actually outside the front of the Cathedral talking to parishioners, and for at least 10 minutes, according to unchallenged witnesses.
What’s more, his sole accuser told the jury he himself was outside the Cathedral straight after Mass, on the long walk back towards the choir room in a procession with the rest of his choir.
Judd tried several ways to explain to the High Court how the rapes could still have happened when neither the rapist nor his victims seemed to be at the scene of the crime at the alleged time.
For a start, she suggested that maybe the “quiet time” before the servers brought the sacred vessels to the sacristy — where Pell was supposedly raping the boys for at least five minutes — was longer than that “five or six minutes”: “They are approximate times.”
The Chief Justice replied: “Was it put to any witness that it could be more than five to six minutes? ... I take it the answer to my question is no?”
Judd also suggested the “quiet time” started later — which would give Pell more time to get to the sacristy. Maybe it started not when the procession left the Cathedral, but when the altar boys got back to the sacristy: “The Crown position was always that it occurred after the altar boys had bowed to the crucifix (in the sacristy).”
Justice Patrick Keane reminded Judd that evidence at the trial was different — the “quiet time” started as the procession left the Cathedral: “The evidence is of people coming up, to have their private time, as the others are leaving the cathedral.”
Judd also suggested that maybe the rapes didn’t last that long: “I mean, it was conceded (during Pell’s trial), that it was five to six minutes but … (it was) barely this and barely that.”
But Justice Geoffrey Nettle again reminded Judd of the evidence: “It did, even on the complainant’s own evidence, amount to about five to six minutes.”
Judd also tried to explain where the altar servers had gone during the “five or six” minutes during which Pell was allegedly raping the boys in the sacristy — given that they used the same room to store the crucifix they’d carried in the procession and then the sacred vessels they tidied from the sanctuary.
Judd suggested the servers had gone off to get changed before then clearing away the vessels in their civilian clothes: “There was evidence … that they went to what they called the ‘worker sacristy’ to unrobe.”
But Pell’s barrister pointed out that Judd’s theory of the altar servers leaving the sacristy for those critical five or six minutes to get changed had been dropped by prosecutors at Pell’s trial, after admitting there was no evidence to back it up.
So why was that theory being trotted out again?I suspect it’s because even Victoria’s Director of Public Prosecutions believes Pell may not have committed the rapes at the time that was alleged. The facts don’t fit.
Now let’s see if the High Court thinks so, too. We could know as soon as this week.