The “ring of truth.”
The two justices who denied the appeal of Cardinal George Pell Aug. 21 said that the complainant’s testimony had the “ring of truth.” If so, they were able to detect the tinkle of a sanctuary bell, even though contradictory evidence was pouring forth from the cathedral organ at top volume, with all stops pulled.
The denial of Cardinal Pell’s appeal is catastrophic for his liberty, as he was returned to prison, where he has been kept in solitary confinement for 176 days. He has been refused permission to celebrate Mass.
The ruling, delivered 2-1 by a three-judge panel of the Victorian Court of Appeal, is catastrophic on another level. A new standard is being proposed for what is required for conviction beyond a reasonable doubt.
The charges against Cardinal Pell were so outrageous as to be utterly impossible: In his first Sunday Mass in his cathedral as the new archbishop of Melbourne, he broke away from the closing procession, hastened back to the sacristy, discovered two choirboys there whom he had never met previously, sexually assaulted them in a graphic manner while still fully vested for Mass, during which time the sacristy door was open, the cathedral was still full of people milling about, and the servers and sacristans were going back and forth from the sanctuary to the sacristies.
No one saw Cardinal Pell break away from the procession, including the master of ceremonies, who was always at his side and testified to that effect. No one saw the boys break from the procession either, and several witnesses testified that they could not have done so without being noticed.
After completing all of this sordid activity in six to eight minutes, Cardinal Pell then went back to greeting people departing from Mass. No one saw anything at the time. One of the boys, who died in 2014, denied to his mother in 2001 that he had ever been “touched up” and sexually abused. The other boy said nothing until making a complaint in 2015.
The prosecution presented only the evidence of the complainant, without any corroborating physical or circumstantial evidence, and without any supporting witnesses. The defense presented the cardinal’s vehement denials, the apparent denial of the alleged other victim, and the testimony of a parade of witness saying that it simply could not have happened.
If that is not enough to establish reasonable doubt — at the very least, if not absolute exoneration — then it is hard to imagine any sexual-abuse case where reasonable doubt could be established.
In the course of delivering the appeal court’s verdict, Chief Justice Anne Ferguson said that “the whole of the evidence” would permit a jury to reasonably convict. But the astonishing thing about Cardinal Pell’s case is that the “whole of the evidence” was wholly, entirely and exclusively the testimony of one man.
The principle the appeals court applied in the case — and perhaps has now established for other such cases — is that the alleged victim’s testimony alone, if found to have an ill-defined “ring of truth,” is sufficient to convict, no matter how overwhelming the facts put into evidence by the defense.
This was not, as sometimes sexual-misconduct trials are, a he-said/he-said issue. This was a he-said/everyone-else-said trial, and the court found that it was still reasonable not to have any reasonable doubts about what he said.
Cardinal Pell may still appeal to the High Court of Australia. It would be rare to succeed at that level after losing at the appeal court. But the High Court may wish to take Cardinal Pell’s case independent of the cardinal himself, as a means of examining whether the principle of the victim’s testimony trumping all things and everything should be applied across the land.
The appeal court knew that it was upholding a verdict at trial that had been greeted with incredulity the world over, including among many who are not at all friendly toward Cardinal Pell.
“Plainly enough, uncertainty multiplied upon uncertainty does not — cannot — demonstrate impossibility,” wrote the majority judges. “Moreover, the Crown could rely on the evidence in discharging its burden to establish that there was a realistic opportunity for the offending to have occurred.”
Again, there was no evidence other than the complainant’s testimony.
Uncertainty upon uncertainty; implausibility upon implausibility; incredulity upon incredulity — all this does not amount to a metaphysical impossibility, the court ruled. And against something less than a metaphysical impossibility, the alleged victim’s testimony is sufficient to convict.
The dissenting judge, who voted to acquit Cardinal Pell of all charges, dismissed in polite fashion the majority opinion that the complainant’s “ring of truth” was sufficient to overcome any and all contrary evidence.
“It cannot legitimately be said that no matter how improbable the complainant’s account might be … and no matter how cogent the body of exculpatory evidence led at trial might appear, the complainant’s demeanor in the face of sustained cross-examination must invariably trump factors of that kind,” wrote Justice Mark Weinberg.
In assessing the reasonableness of the complainant’s “ring of truth,” the appeal court ruled that the jury was entitled to believe the testimony in part because no motive was presented by the defense for the complainant to be lying. The court noted that the defense is not obliged to provide such a motive, but if there is no apparent motive to lie, then the jury may justifiably be more inclined to believe the alleged victim. The court suggested that no such motive existed and couldn’t imagine what one might be.
It is actually not hard to imagine. The motive of the complainant to lie — or “concoct” part of his story, in the words of the dissenting justice — might be the same as the motive of the Victoria police who brought the charges against Cardinal Pell. That police department, in March 2013, set up “Operation Tethering” to solicit allegations against Cardinal Pell two years before any complaints had been made.
For two years the Victoria police were investigating — actually, desperately pleading for victims to come forward, including with newspaper ads — with no results. They were not investigating a crime and looking for the responsible man; they had their man and were looking to hang upon him a plausible crime.
In the end, they failed at that and had only an implausible crime to hang around Cardinal Pell’s neck.
What did they do in those two years before they finally produced the complainant in this case? Why did the other alleged victim not come forward to Operation Tethering in the year before died? Why did the complainant only come forward after his fellow alleged victim was dead and no longer able to contradict his story? What, if any, inducements or threats did the Victoria police employ with the complainant?
In normal circumstances, it would be more difficult for a camel to pass through the eye of a needle than for a jury to unanimously convict beyond a reasonable doubt in Cardinal Pell’s case, let alone to prevail upon appeal.
These are not normal circumstances — for nothing is impossible for the Victoria police and courts, not least the conviction of an innocent man.
Father Raymond J. de Souza is editor in chief of Convivium magazine.