- “Everyone who is arrogant of heart is an abomination to the Lord; be assured he will not go unpunished.” Proverbs 16:5
Robert Richter is one of Victoria’s most experienced and renowned criminal barristers. But was it a mistake not to call George Pell to give evidence in his trial for sexually assaulting two choirboys at St Patricks Cathedral in 1996?
Richter advised Pell not to give evidence. Criminal barristers have different views on this decision. Everybody agrees it is easy to judge with the benefit of hindsight. Indeed, had Pell given evidence, and been convicted anyway, the decision to call him as a witness in his own defence might also have been criticised with hindsight.
One of Richter’s most famous defence victories was to obtain the acquittal of Mick Gatto from the charge of having murdered gangland figure Andrew Veniamin. Gatto acknowledged having killed Veniamin. But he claimed he had done so in self-defence. He said Veniamin pulled out a .38 revolver and threatened to kill him and that during a struggle he was able to turn the gun around on Veniamin. One shot entered Veniamin’s neck, the other entered an eye.
Asked after Pell’s case why Gatto had given evidence, Richter stated it was because he had insisted on doing so. In his autobiography Gatto describes the conversation with Richter:
“I wanted to give evidence and tell the jury what had actually happened that day. But Richter advised me not to.
‘Mick, I think you’re a mile in front. I don’t recommend that you give evidence yourself. The downside is that they wouldn’t know what happened in that room except that you both went in there and he was killed. The upside is you give evidence and all that comes out, but they are going to attack your credibility, attack you everywhere. They will keep you in the witness box for days and drive you mad.” He paused. “It’s your call. My advice is you don’t do it’.
‘I want to do it’ I told him.
‘Are you sure?’
‘Yes. I’m sure. It’s important that it comes out what took place in that room’.
The prosecution were claiming that I’d executed Andrew and shot him while he was lying on the ground.
‘Whatever they attack me with, I can handle myself’.”
From the reports, Gatto’s evidence does not appear to have been a decisive factor in his acquittal. A photograph of the gun used in the incident allowed Richter to bolster the defence’s claim that the death occurred during a struggle because it confirmed that one of the shots from the gun had misfired. This was consistent with pressure on the gun such as might have occurred during a struggle. But who can say for sure what factors influence a jury? Self evidently, despite heavy cross-examination, his decision to give evidence did no harm to Gatto’s case.
An accused in a criminal trial has a right to silence and the jury is generally instructed that it must draw no negative inference from that silence. The Jury Directions Act 2015 sets out in some detail what the direction must include. Statements during the trial suggesting negative inferences from the failure of the accused to give evidence are also prohibited.
Prior the commencement of the Crimes (Sexual Offences) Act 1980, judges were required to warn juries about the danger of acting on the evidence of a complainant in a sexual offence case and the need to scrutinise the evidence carefully. This obligation stemmed from a presumption that complainants in sexual offence cases were unreliable witnesses. The 1980 amendments abolished that presumption and provided that the judge must not warn or suggest that the law regards complainants in sexual cases as an unreliable class of witness.
Now, under the Jury Directions Act 2015, the judge, prosecutor and defence are prohibited from suggesting that complainants are an unreliable class of witness, or that complainants who delay in making a complaint, as a class, are less credible or require more careful scrutiny. Instead, in a case where delay in complaint is relevant, the judge must direct the jury that delay is a common occurrence and there is no typical, proper or normal response to a sexual offence. Further, any common law obligation on a judge to direct the jury that delay in complaint may be relevant to a complainant’s reliability or credibility is abolished.
Richter apparently still adheres strongly to the view that, in general, an accused is best to remain silent. He is said to regard the decision to call an accused as a game changer. As soon as an accused gets into the witness box there is an implicit acknowledgement that the prosecution has succeeded in leading evidence which, absent the accused’s evidence, might be strong enough to convict.
Further, in Pell’s case, the defence had a visual record of the interview Pell had done with the police to lead in evidence. Pell makes strong denials during the interview. This included a key assertion the defence would rely upon at trial regarding accessibility to the sacristy where the prosecution alleged the assaults took place. The existence of the recorded interview meant the defence could play it to the jury without Pell having to be cross examined in relation to it. This was not available in Gatto’s case behalf because, unlike Pell, apart from asserting self-defence from the beginning, Gatto gave a “no comment” interview to the police. He volunteered no information to the police on the detail of the struggle with Veniamin or the lead up to it.
George Pell has lived his whole working life defending and protecting the most conservative brand of Catholicism, its Church, and Church authority and hierarchy. This same conservatism would naturally lead Pell to defer to his legal advisor’s recommendations. Mick Gatto, on the other hand, while also a Catholic, comes from a very different place. But one might still query who had the better street smarts, perhaps referred to as “emotional intelligence” in more sophisticated circles?
Of course emotional intelligence, not to mention charm, might also be relevant to how successfully one can cope with giving evidence in court. Gatto has a little skite in his book:
“…Horgan for the prosecution, got up and started attacking me. It was a nasty game. Even before I got into the box he was pointing at me calling me a ‘demonstrable liar’. I felt like jumping out of the box and clocking him. But I kept my cool and even managed to give him a little bit back when he cross- examined me. He didn’t like it one bit. I was in the box for nearly two days”.
The law puts rules around the criminal trial process in an endeavour to ensure fairness, rationality and consistency. But in the end, whatever instructions are given to the jury, a criminal trial is still partly theatre; impressions count as do both conscious and subconscious reactions to them.
On all accounts George Pell was confronted in his trial by a former choir boy who presented as a believable witness with no obvious motive for invention. He is said to have been spurred into finally coming forward by the death by heroin overdose of the other choirboy.
In her book about George Pell, journalist Louise Milligan calls the prosecution’s witness ‘the Kid’. Milligan describes him as an ideal witness from a police point of view.
“The Kid has not led a chequered life,” Milligan notes in her book. “He’s university-educated, he hasn’t had trouble with the law. He has a lovely young girlfriend, lots of friends, he’s a pillar of his community in a sort of understated, slightly ironic way, and in that part of his life, he is, he told me, very happy. He’s managed, just, to keep it together. He’s been able to compartmentalise. He’s the sort of complainant you’d want as a Victoria Police detective alleging historic crime.”
The believability of the ‘the Kid’ was even acknowledged by Father Frank Brennan, despite his view that the verdict against Pell is unsafe.
“Although the complainant got all sorts of facts wrong, the jury must have believed that Pell did something dreadful to him. The jurors must have judged the complainant to be honest and reliable even though many of the details he gave were improbable if not impossible.”
Brennan also implicitly acknowledged the possible operation of subconscious reactions by the jury when he wrote:
‘Should the appeal fail, I hope and pray that Cardinal Pell, heading for prison, is not the unwitting victim of a wounded nation in search of a scapegoat.’
The reason I say Brennan is referring to possible subconscious influences is because, as criminal lawyer Peter Kemp has pointed out, the judge would have cautioned the jury that its decision must be based only upon the evidence presented in court. Thecaution would have included discarding extraneous matters such as media publicity and “a wounded nation in search of a scapegoat”.
In the end what occurred in Pell’s trial was that sworn evidence was given by a believable witness for the prosecution and no sworn evidence was adduced to contradict that evidence.
Despite the accused right to silence, sworn evidence is supposed to be given weight by virtue of its being sworn. Historically when the oath is being taken or affirmation administered the solemnity of the occasion is acknowledged by the cessation of movement and conversation in the court. Apart from this ritual, the importance of sworn evidence is reflected by the fact that lying under oath or affirmation constitutes perjury, while lying, in general, is not a crime. The weight that is supposed to be given to sworn evidence and how this sits with the accused right to silence, is an awkward tension that exists within our necessarily imperfect criminal justice system. Ironically, as barrister Toby Shnookal notes below, the right to silence itself has religious antecedents.
George Pell has devoted his life to a God that he believes in. The Catholic God give us some free will but holds all human beings to be tainted by Adam’s original sin. This includes Cardinal Pell. But whatever sins Pell may have committed he presumably still holds to his faith in God. And presumably that God is a just God. So the nagging question is: Why did Pell not insist upon taking Bible in hand, looking the jury straight in the eye and swearing by God that he was innocent of all charges?
If his appeal fails, Pell will have quite some time to contemplate the answer to that question. Mick Gatto in the meantime, lives his life, no doubt saddened by the recent death of his son, apparently by suicide.
And as for God? Well, he just continues to work in mysterious ways.