Cardinal George Pell arrives at Melbourne County Court on February 27 in Melbourne. Picture: Michael Dodge/Getty Images.
Cardinal George Pell arrives at Melbourne County Court on February 27 in Melbourne. Picture: Michael Dodge/Getty Images.

The crucial mistake in Pell’s defence

Convicted paedophile George Pell's decision not to testify during his trial for child sex crimes could have cost him the case, according to experienced criminal lawyers.

Several senior counsel, speaking on the condition of anonymity, told The Australian Pell testifying would have provided the best chance of convincing a jury the allegations were without merit.

"Not giving evidence has the potential to hurt you," one silk told the newspaper.

On the advice of his legal team, Pell chose not to take the witness stand, which meant the jury'sonly glimpse of his reaction to the crisis enveloping him was his recorded 2016 interview with Australian police in Rome, Italy.

He was convicted in December of raping one choirboy in Melbourne's St Patrick's Cathedral and molesting another in 1996. But his guilty verdict wasn't made public until Tuesday after a second trial was abandoned and months of secrecy surrounding the case. He was remanded in custody on Wednesday and will return to court for sentencing on March 13.

Now police video of Pell's interview with Victorian detectives in Rome over the historic sexual abuse has been made public for the first time.

"What a load of absolute and disgraceful rubbish. Completely false, madness," Pell said in response to the allegations in the video.

In the interview, detectives showed Pell pictures of his victims. He claimed to not know "any kids in the choir" in 1996 before urging the investigators not to press charges.

However, his demeanour changed dramatically when he appeared in court.

Apart from saying "not guilty" in a firm and defiant voice when five charges were read at the outset of the trial, Pell remained silent throughout the process.

But criminal barrister Greg Barns, who is also the Australian Lawyers' Alliance national criminal justice spokesman, told news.com.au the decision not to call Pell to the witness box would have been a carefully considered one made by his legal team.

"No one is better placed to make decisions about whether your client gives evidence in a criminal trial than their defence team," he said.

Mr Barns said it was "not uncommon, in fact probably the norm, that the accused doesn't give evidence" at a criminal trial.

"One reason for that is the accused has nothing to prove, it's up to the prosecution to prove the case," Mr Barns said.

"The second is because the client has made a recorded interview (with police) in which they've made denials, and that forms part of the evidence and is essentially your defence."

A man abuses George Pell as he enters court after being found guilty of child sexual abuse following a trial in Melbourne. Picture: Alex Coppel
A man abuses George Pell as he enters court after being found guilty of child sexual abuse following a trial in Melbourne. Picture: Alex Coppel

Mr Barns said the risk for a defence team to call on their client to give evidence was often too great.

"I've certainly done cases where clients have been called to give evidence and they've done very well," he said.

"If you've assessed the person and think they're going to be believable and that a jury would sympathise and empathise with them (you're more likely to put them forward).

"And I've done some where clients have been called and done badly; they've been argumentative and not answered questions and been not believable."

Pell's lawyers are pushing for a retrial, and his legal team has applied for leave to appeal his child sex convictions with the Court of Appeal.

WHAT THE JURY HEARD FROM PELL

The former Vatican finance minister was interviewed by Australian police in a conference room at the Hilton Airport Hotel in Rome on October 19, 2016. Forty-five minutes of the recording was shown to the jury in the final week of Pell's trial and retrial.

In the clip, Detective Sergeant Chris Reed for the first time detailed to Pell allegations he had "orally raped" two choirboys in Melbourne's St Patrick's Cathedral while he was archbishop of Australia's second-largest city 20 years earlier.

Pell appeared incredulous, distressed and outraged. He grimaced and waved his arms over his head, crossed them tightly across his chest and muttered to himself as the detectives detailed the accusations that one of the alleged victims levelled against him a year earlier. Pell's lawyer Michael do Rozario, a Sydney law firm partner, sat beside him and remained largely silent throughout the interview.

Cardinal George Pell's lawyer Robert Richter QC leaves the County Court in Melbourne on Wednesday. Picture: AAP /Erik Anderson.
Cardinal George Pell's lawyer Robert Richter QC leaves the County Court in Melbourne on Wednesday. Picture: AAP /Erik Anderson.

Pell faces a potential maximum 50-year prison term.

"The allegations involve vile and disgusting conduct contrary to everything I hold dear and contrary to the explicit teachings of the church which I have spent my life representing," Pell read from a prepared statement early in the police interview in response to a summary of the allegations presented by detectives to his lawyers in advance of the interview.

"They're made against me knowing that I was the first person in the Western world to create a church structure to recognise, compensate and help to heal the wounds inflicted by sexual abuse of children at the hands of some in the Catholic Church," he added.

Pell was referring to his role at the vanguard of helping victims of clergy sex abuse as the instigator of the Melbourne Response, a compensation scheme for abuse victims established by Pell in 1996, within months of him becoming archbishop of Melbourne and around the time his crimes allegedly began. During the trial, Sgt. Reed told the jury he had never before presented a suspect with such a summary of the allegations before a recorded interview. But the summary was one of the demands made by Pell's lawyers before Pell would agree to be interviewed in Rome, where Australian police have no jurisdiction and Australia has no extradition treaty.

Pell, once the third most powerful man in the Vatican and Australia's most senior Catholic, was found guilty on December 11 in Melbourne's County Court, but the result was subject to a suppression order and was only able to be reported from Tuesday. Picture: Michael Dodge/Getty Images.
Pell, once the third most powerful man in the Vatican and Australia's most senior Catholic, was found guilty on December 11 in Melbourne's County Court, but the result was subject to a suppression order and was only able to be reported from Tuesday. Picture: Michael Dodge/Getty Images.

On the allegation he had cornered two 13-year-old boys in a back room of the cathedral and exposed an erect penis from his robes, Pell responded: "Oh, stop it. What a load of absolutely disgraceful rubbish. It's completely false. Madness." On the accusation he knelt masturbating while fondling one of the boy's bare genitalia, the cardinal responded: "After Sunday Mass? Well, need I say any more? What a load of garbage and falsehood and deranged falsehood." Pell warned the police that if he were charged on allegations he described as "products of fantasy" and "fundamentally improbable", the reputational damage would be done before any verdict.

"Immeasurable damage will be done to me and the church by the mere laying of charges which on proper examination were later found to be untrue," Pell said. Despite receiving the summary of the allegations, some aspects of the interview appeared to take Pell and his lawyers by surprise.

The summary referred to the crimes allegedly occurring "after choir". The lawyers misunderstood that to mean after choir practice, which sometimes took place in the largely empty cathedral on a weeknight.

In fact, police meant the abuse had taken place after the 60 choristers had sung at the liturgical highlight of the week - the so-called Solemn Mass that starts at 11am every Sunday. The grand service is attended by several priests and altar servers while attracting hundreds of worshippers.

On clarifying the crimes allegedly occurred in a sacristy after Mass, Pell told police, "That's good for me because it makes it even more fantastical." "The sacristy after Mass is generally a hive of activity," Pell said. "You could scarcely imagine a place that was more unlikely to be (the scene of) committing paedophilia crimes than the sacristy of the cathedral after Mass."

Before the police interview, Pell's lawyers had been engaged with Victoria Police for months.

Protesters hold placards outside the County Court as they await Cardinal George Pell in Melbourne on Wednesday. Picture: AP/Andy Brownbill.
Protesters hold placards outside the County Court as they await Cardinal George Pell in Melbourne on Wednesday. Picture: AP/Andy Brownbill.

The second choirboy died of a heroin overdose in 2014 without making a complaint to police. Pell's explanation to police of why the allegations against him did not stack up closely mirrored the reasons his lawyers put to the jury as to why they should find the cardinal not guilty.

He said he would always talk to members of the congregation at the front of the cathedral immediately after Mass, when the crimes allegedly occurred. He also said he was never alone in the sacristy, where the offences allegedly took place, and altar servers and priests were always nearby and could walk in at any moment. He said the sacramental wine he had allegedly caught the choirboys swigging before abusing them was always kept locked in a safe. Pell's lawyer Robert Richter told the jury it made no sense Pell would be sexually abusing children at the same time he was encouraging abuse victims to come forward with their allegations through the Melbourne Response. "Only a madman would attempt to rape boys in the priest's sacristy immediately after Sunday Solemn Mass," Mr Richter told the jury.

"Who in their right mind - and no one has questioned the mind of Cardinal Pell - would take the risk of doing what (the complainant) says happened? Did the archbishop have some kind of mental breakdown?"

Prosecutor Mark Gibson told the jury members they could reject Pell's "emphatic denials" made in the police interview beyond reasonable doubt. Pell said in an Australian television interview weeks before his interview with police the public perception of him as "wooden" was wrong. Standing 193 centimetres tall, with conspicuous intelligence and a reputation forever flinching from conflict, Pell has been a powerful presence both physically and in personality. He was offered a contract to play professional Australian rules football but chose the seminary instead. "I wasn't a bad footballer. I was very fiery," Pell said. "I've got a formidable temper which I almost never show, but the discipline that is needed by me not to lapse in that way I think helps explain my wooden appearance."

- With AAP


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