Cardinal George Pell’s conviction of five criminal offences relating to child sexual abuse was one of the most dramatic moments in Victorian legal history and the history of Australian Catholicism. He was later acquitted by the High Court of Australia in an equally dramatic 7-0 verdict, vindicating his supporters and providing a blow to those who saw this case as emblematic of a corrupt institution being brought to justice.
One of the people who attended the trial proceedings and had complete access to the necessary transcripts was Frank Brennan SJ, a man described by the National Trust as a Living National Treasure. Brennan has an astonishing amount to his name: Officer of the Order of Australia, Rector at Newman College, Adjunct Professor at Thomas More Law School and Research Professor at the Australian Centre for Christianity and Culture. And those are just positions he holds currently. He has authored numerous books and received multiple awards for his work with Aboriginal Australians, refugees, and in the arena of democratic law and human rights.
Brennan's most recent book is called Observations on the Pell Proceedings (2021, Connor Court Publishing) and is a collection of articles, essays and interviews that he provided to the media throughout every stage of the legal process. Despite the fairly understated title, taken together these essays come to some damning conclusions about the state of the Victorian legal system and the Victorian Police Force.
Brennan attended the trials at the request of the Australian Catholic Bishops Conference. In some sense, he was the perfect man to cover the Pell proceedings. Not only did he have a public reputation for being someone at odds with Pell on certain issues, but he was a strong advocate for State intervention in holding the Catholic Church legally accountable as an institution. In 2012, Brennan gave a talk at Parliament House in Sydney making this exact point: ‘Look,’ he said, ‘the Catholic Church needs help.’
'We had a structure in place that was basically incoherent, it wasn’t transparent, it was quite opaque to those outside.’
When Brennan met with Pell, he would say, ‘I’m not here as part of Team Pell, I’m here in order that people can get the message as to what’s actually going on, so they can draw their own conclusions.’
What compelled Brennan, in the end, was that the trial had been put under a suppression order. If the suppression order hadn’t been in place, there would have been more opportunity for regular, robust reporting on the part of newspapers nationally and internationally. As it happened, the major impression people were going to get was from the three books published by Louise Milligan, Melissa Davey and Lucy Morris-Marr.
'They’re not worth the paper they’re written on. They don’t understand the first thing about the law and they don’t understand the first thing about how a solemn High Mass works.’
Unlike many journalists, Brennan had access to the complete transcript of proceedings.
The trial revolved around the accusation of a complainant, an anonymous man known simply as “Witness J”. The accusation was that in December 1996, two altar boys (the complainant and one other boy, who later died of a heroin overdose) left the exit procession at the end of an 11 a.m. solemn High Mass at St Patrick’s Cathedral, snuck into the priest’s sacristy and started swilling altar wine, only to be caught out by Cardinal Pell, who, apparently unaccompanied and in his copious liturgical vestments, proceeded to commit three horrendous sexual acts against them. The complainant also accused Pell of attacking him a month or so later in a corridor after Mass. The result of these accusations, after two trials, was Pell being charged with five offences of child sexual abuse and spending 404 days in prison, mostly solitary confinement. These crimes allegedly occurred over a period of five or six minutes.
The prosecution against Pell faced numerous challenges, foremost of which was trying to find the five or six minutes in which Pell could possibly have been alone with the boys in the sacristy. First of all, there was the problem that the sacristy is, after any Mass (but especially a Sunday High Mass), a hub of activity, with altar servers, money changers, priests, and people coming in and out – none of whom, Brennan points out again and again in the book, the police thought necessary to interview. Apparently they weren’t relevant to the case since the complainant was a choirboy.
Secondly, there was the problem that Monsignor Charles Portelli – someone who followed Pell everywhere, was MC of the Mass, and helped him disrobe in the sacristy – had to have been found to be separated from Pell at some point.
Brennan, who knew the QC leading the prosecution, Mark Gibson, believes him to be of the highest ethical standard when it comes to the law.
'I told Pell, “He will not do anything unethical.” I, therefore, sat there, putting myself in Gibson’s shoes, who had to find six minutes for Pell and these boys to be alone. And he could never do it.’
The most horrific moment for Brennan was when the Director of Public Prosecution, Kerri Judd, before the seven High Court judges of Australia, ‘invented evidence,’ Brennan said. ‘[Her behaviour] was an absolute disgrace.’ The only thing she could do was propose theory after theory, none of which were supported by the evidence. Some of them flatly contradicted it.
What also tipped Brennan off to the whole situation, though, was the fact that Witness J changed his story multiple times. According to Pell it was 24 times.
‘That’s what convinced me it was a sting operation by the police,’ Brennan says.
When Pell became Archbishop of Melbourne, he set up the Melbourne Response with the help of Victoria Police and the most senior lawyers in the State (including the Solicitor General) so that there could be a process of review and compensation for people who had been abused by the Catholic Church. This process worked well, Brennan says, for about 15 years, between 1996 and 2011. It was one of the first institutions that treated these offences for what they were—criminal—and provided top-end figures of compensation.
When the 2013 Royal Commission into Institutional Child Abuse took place, it found two institutions at fault historically: The Catholic Church and Victoria Police.
'Any Royal Commission worth its salt will be able to produce a couple of big scalps … It was just a concatenation of circumstances that Pell was the one in their sights.’
It was also in 2013 that Victoria Police began Operation Tethering, advertising in newspapers for complaints about Pell before any complaints had ever been made. Based upon parliamentary inquiries and correspondence between Victoria Police and the Church, it is quite clear for Brennan that Victoria Police were simply protecting themselves and needed a scapegoat because they were also at fault.
The implications of this for Victoria are enormous. The twenty-first century is already marked by a deep erosion of trust in the major institutions that govern, structure, and provide us with meaning. Everything from police, banks, aged-care, the legal system, the Church, the government, and now the military. ‘There’s nothing left standing,’ Brennan says. The irony, of course, is that two years into a pandemic people have realised that you actually need to trust your institutions:
'In good times you can get by without having any real trust in institutions, but in times of pandemic, you’ve gotta trust someone … You do need a world of meaning.’
As a result, a number of reforms need to take place in Victoria, reforms that Brennan outlines in the book. There is also the need, especially in Victoria, for the Church to continue along the path of the Gospel, a path of humility, openness, and transparency.
'Ultimately, the real strength of the Catholic Church has to be, not its buildings, not the kudos of its bishops, but the presence and the reality of its sacraments … You need institutions, you need processes for legal accountability, but you also need to acknowledge that that is simply the structure, or the earthenware jar which holds what is precious, which is the sacramental capacity to put people in touch with Jesus their Lord.’
In the Vatican II document Gaudium et Spes, it says that basic to the work of the Church is ‘scrutinizing the signs of the times and interpreting them in the light of the Gospel’ (§4). A question presents itself: How do we read this protracted legal drama in the light of the Gospel?
'First by seeing things through the eyes of the anawim, those who were part of the Church community but who were abused.’
When Brennan employs the word anawim, he is using the Hebrew word used in the Old Testament to describe ‘the poor’: everyone vulnerable and marginalised. Here he describes those who have been abused by trusted Catholic leaders also as the anawim.
'And so, how do we make sense, or help them make sense of their lives? And what do their lives say to us about what we’re professing to be?’
The second way in which we can read this drama in the light of the Gospel, he says, is by learning the humility necessary to be the Church we need to be.
'We were so often perceived as being the ones who thought we were the experts on humanity, or the experts on morality, who were telling them the State or them the secular society what they ought to be doing. Whereas, [we need] to acknowledge that it’s been in the midst of secular society and with the intervention of the State we’ve been able to come to a sense of the enormity of our own institutional sinfulness, and to provide us with a way out of this.’
Even though Brennan argues clearly and persuasively that it is practically impossible for Pell to have done the things he was accused of (a conclusion that is nothing less than inescapable), he never keeps far from his conversation the people who have been victims of sexual abuse by clergy. Whatever the truth is about Witness J, there have been many victims and the distrust of the Catholic Church as an institution has never been lower. As such, he dedicated the book to ‘those who seek truth, justice and healing and to those who have been denied them.’
For the sake of victims everywhere, and for the sake of social trust in our institutions, the ultimate message of Brennan’s book is: We need to do better. Everyone needs to do better.
Fr Frank Brennan SJ explores how justice disintegrated in Victoria just when it was needed most in this special lift out by Catholic Weekly. Republished with permission.
Melbourne Catholic28 November 2023
VMCH28 November 2023