Contributors to a site called, ‘CCC Guys’, most of whom are former seminarians, have had much to say about the Pell trials and the looming High Court decision.
Noting the often polarised and emotive discourse, I recently posted a version of the following. It touches on the neuropsychology of decision making, links these thoughts to the strengths and flaws in our legal system and reflects on our responses to Pell and to the trial process.
Let’s begin at the beginning. During our evolutionary journey, we have had to make many survival-focused decisions based on incomplete evidence. Often, if we didn’t want to get eaten, there was no time to weigh up multiple options. Flee or fight!
At the same time, as primatologists like Frans de Wall so beautifully illustrate (see for example Mamma’s last hug), when they have time to pause or play, many non-human animals, just like their human counterparts (us!), weigh up options, understand the concept of fairness, show loyalty (and even altruism), create and react to enemies, seek revenge and cheat on friends and partners.
In addition, Damasio’s Descartes’ error, is one of many publications drawing on modern neurobiology demonstrating that human decision making is always (and probably mainly) emotionally informed. For example, the evidence shows that in those rare cases of neurological trauma in which the person had no access to emotions, decision making is virtually impossible, even when all the facts are known.
In the seminary in which I studied in the 1960s, decision making was presented as a rational and largely disembodied process. Emotions, if mentioned at all, were treated with profound suspicion. In the seminary, faith and reason were our tools of the trade.
But even in its rational manifestations, the efficiency of day to day decision-making is suspect. For one thing, we are limited by the number of bits of information (roughly seven) we can hold in our short-term memory at any given time.
Our legal system, which is simultaneously disembodied and theatrical, tries to smooth out the task of processing information by slowing things down, by assembling the ‘facts’ in some sort of order and by making a rationally informed judgments on what these ‘facts’ tell us. As in the seminary, the emotional aspects of disputed evidence are treated as noise in the system. If emotion does find its way into evidence, it tends to be channeled into legal discourse about morality or motivations.
If I was accused of a serious crime, I’d rather subject myself to our legal system than to most other methods of inquiry. But I would nonetheless be very anxious. I would be aware of placing my fate in the hands of a system which operates on numerous flawed assumptions.
Let me briefly consider just one set of flawed assumptions embedded but generally not articulated in legal cases – the complex nature of memory.
When I worked as a Family Court Counsellor, I quickly came to realise that barristers rely on a limited number of techniques. One is to ask a series of increasingly detailed questions designed to probe a person’s memory about what happened.
Witnesses who continue down the rabbit hole of increasingly detailed memory will find that in this regard, their memory will eventually ‘fail’. If a barrister shows that the answer to a detailed question is incorrect, the next move is to invite the judge to see the person as an unreliable witness.
Alternatively, if the witness recognises the impossibility of the game being played and refuses to be drawn into answering questions past a certain level of detail, the barrister can question his or her bona fides.
If I were asked to remember an event in a particular room, the chances are I would ‘see’ myself standing within the room. But that’s not how I experienced it. I didn’t actually observe myself. Memory is a construction. It is not like a photograph.
If something significant (good or bad) happened to me in the room, I would have few doubts about its occurrence. My memory would probably locate the event in a particular part of the room because that is the nature of memory. That is, I would see myself participating in the event, but in order to do that, I have to locate myself somewhere.
But if it were shown that the room was not exactly as I had remembered it (one of the claims currently being made in support of a mis-trial in the case of George Pell), that would not necessarily invalidate the experience of what had occurred while I was there.
An example. I recently re-visited Greyfriars Kirk in Edinburgh. In 1970, I had preached the only sermon I have ever preached in my life in that church. It was a very significant event because I realised in the moment that this was not what I wanted to do with my life.
In my memory, the pulpit had been located at the opposite end of the Kirk. But when I asked the warden why everything had been turned in the other direction, he assured me that this was not the case. Though my memory of the surroundings was flawed, the essence of what happened is clear. I am in no doubt that what happened there on that day changed my life.
I want to suggest that the multiple discussions my ‘CCC Guys’ colleagues and I have been having on the Pell decision have all been occurring against a background of such imperfect or incomplete data at two levels at least.
Some of my colleagues challenge the judgment on the grounds of flaws in the memory of the witness with regard to the physical lay-out of the Cathedral. I say it would be impossible to have had a perfect memory in this regard. The important question, I suggest is, does anything significant turn on this flawed and constructed memory?
At another level, as several of my colleagues have pointed out, none of us witnessed all the evidence during the trial. The legal system made it impossible for all but a very few to follow all the evidence as it was presented. I understand the reasons for this but there is a price to pay. Justice was not seen to be done.
If we had seen every part of the trial, I have no doubt that there would still be disagreements between us. But therein lies the wisdom of our jury system It requires a unanimous (or near unanimous) decision to convict. Generally speaking, any level of disagreement means that the accused is found not guilty, or another trial is ordered.
The fact that none of us on the CCC website witnessed all the evidence, makes it impossible for any of us to reach a fully informed conclusion. We must either suspend judgement or fill in the ‘facts’ as best we can. But what is the process by which we add these gaps to the narrative we create?
In my Family Court days, I became good friends with a barrister who was a QC and eventually became a Supreme Court Judge. One day we were discussing the Lindy Chamberlin affair. The case was in the headlines, but no decision had yet been made. I still remember my friend confidently declaring, “She’s as guilty as hell.” For me this was an important lesson on how intelligent individuals, even those seen as eminent in their field, can make decisions that come mainly from their internally driven prejudices.
I have read Louise Milligan’s Cardinal. The multiple data sources make for a compelling case against George Pell as a probable paedophile and an almost certain willing participant in hiding the truth of paedophilia.
That doesn’t automatically make him guilty of this particular crime. For me however, it reduces the possibility that even somebody like Richter was unable to break through the mistaken resolve of the witness and that the jury got it wrong.
Of course, the High Court will not be concerned with Milligan or any other history outside the particular allegations in this case. They will be mainly concerned with whether a procedural error could have made the judgment ‘unsafe’.
An acquittal on such grounds will have ramifications for future victims of sexual abuse (and there are tens of thousands of them) who seek some form of justice from our courts. This will not be the High Court’s concern. But that does not detract from the fact that such a decision will make it harder for victims of paedophilia to prosecute their case through legal means.
At the same time, other avenues of inquiry into the behaviour of George Pell become possible once the High Court decision is out of the way. Whatever happens, you would think this case has a long way to go and that the Cardinal won’t be returning to a ‘buisness as usual’ lifestyle any time soon.
Professor Lawrie Moloney
School of Public Health
La Trobe University
Melbourne, Australia
John Menadue is the Founder and Editor in Chief of Pearls and Irritations. He was formerly Secretary of the Department of Prime Minister and Cabinet under Gough Whitlam and Malcolm Fraser, Ambassador to Japan, Secretary of the Department of Immigration and CEO of Qantas.
Comments
10 responses to “LAWRENCE MOLONEY. The Pell trial and its polarising aftermath.”
Yes legal practice includes emotion within the rules and juries decide the facts. My guess is the High Court will grant leave then dismiss the appeal perhaps unanimously. The Holy See may retain the option that Cardinal Pell was not guilty of the crimes alleged and retains his position as a voting cardinal until 80. Then we in Australia could have Cardinal Coleridge. The criminal prosecutor in Rome could consider whether Cardinal Pell was acting contrary to canon law in failing to stop criminal clergy. The Plenary Council could recommend to Pope Francis that he legislate to make the ACBC responsible for the conduct of clergy with appeals after disciplinary action to the Roman Pontiff. My response to this sad abuse is to connect to my local parish and meditate.
That’s Justice Virginia Bell; and the 1st ball … and boy am I sick of shared community technology!
Oh, and as to the odds, JR : I think 5:4 for a bare majority. I don’t know this court But I’m guessing Bell, Gordon, Gageler (is he on the Bench?) and Edelman cf Kiefel CJ & the Rest.
Out of Time….
Stephen Gageler IS ‘still on the Bench’ and deserves recognition from better minds or memories than mine! Hopeless old duffer, Me?
I suppose I ought to have said : 5:4 On for this: Kiefel CJ with Keane and Nettle JJ in the minority with a Majority comprising Bell J (what used be called senior puisne judge, sitting at the right hand of the Chief), Gageler, Gordon and Edelman JJ just outstripping them.
This is not an invitation-to-treat – I can’t afford to make a book on it… although I’d be curious to know how others see the ‘game’.
Frankly, as people say to try to deflect impertinence, the probability of a non-unanimous verdict is a defeat for all Victims of such assaults; the notion of sending the matter for a re-hearing in an Appeal Court with a different Bench id Ludicrous, and the whole case is a bit of a B….y Mess.
I wrote an extended Reply to this today March 13th and got Terminated.
Trying Again but more briefly:
I do not expect to see what this Pell Appeal deserves: an unanimous judgement with all JJs of the High Court concurring. This is what is needed – but unlikely to result.
I expect to see some dissenting Judgements from justices who know we need some Certain jurisprudence on the vexed question of ‘reasonable doubt.’
I hope the HC will also make a strong argument for repeal of S 276 (1) (a) of the Criminal Procedure Act 2009 (Vic) as being, inherently, a creator of Uncertainty, to say the least.
If asked to play the flies on the wall game (see Jerry Roberts) – I’m taking a punt and saying that Kiefel CJ will be in the lead of a slim Minority comprised herself,Keane and Nettle JJ; while (X my heart) Senior Puisne Judge – I don’t even know if that term remains current) Bell J will lead-out Gageler, Gordon and Edelman JJJ in the winning minority.
If Victoria Police and the DPP had done their work properly we would not be in this embarrassing position – as Susan Kiefel CJ understandably implied on Thursday 12th March. We await Royal Commissioner McMurdo’s assessment of what VicPol is worth nowadays but Sir Ken Jones took time and trouble to tell us, under oath, and I’m with him.
Of course, if I had opened my purse to have NBN – installed I shouldn’t have to apologise for typing stupid phrases like ‘the winning minority’ while I race the clock on the public pc – but I think I dislike the NBN even more than I dislike having to correct myself which, until it becomes self-abuse, can be laughed-off as the dopiness of an old warrior for democracy. I hope. Mea culpa.
A good point, Anthony. The Roman Catholic scholarship on social justice is excellent. British Life Peer and Blue Labour founder Maurice Glasman speaks on this subject. We discussed Polanyi over a beer after his Melbourne lecture a few years ago. The Pope gave him a medal for his work. The practice of dissolving Viagra tablets in the altar wine appears to be the problem.
I read this piece just after Sending my own piece on the Pell Appeal (‘ …A Hail Mary Pass’) to John Menadue. If it appears I’ll be very interested to hear/read what these Commentators think about what I’ve offered.
I endorse Prof Molony’s point about ‘the nature of memory’ – an approach supported, also, by Peter Levine in a book on Memory and Trauma.
My enduring interest in this respect is the function and role of the Jury. How fascinating it is that a group of strangers can meet and undertake a civic duty so deliberately and conscientiously… it’s a little bit of a mystery, but a good one. Of course there are errors. Sad and true. For those there Must be compensation. But the wondrous thing is that juries ‘work’ – and whatever they cost – they’re worth it!
In our gambling nation I wonder if the book-makers have framed a market on the Pell appeal. My bet is the conviction will stand. From a public relations point of view the appeal is a mistake. The Church should be changing the subject from sex to social justice.
Pope Francis IS doing that.
The only ‘reports’ I’ve seen from the High Court/ACT in the past 2 days have been in praise of Bret Walker SC’s advocacy-style, and a mention that Justice Virginia bowled the fist ball of the day by making the point to Walker & Team that the Court would be proceeding on the basis that the Complainant was/had been a witness of credit/truth – like all the rest absent Weinberg JA before them. I haven’t a copy of that information so I’m relying on fleeting recall… however, if this is an accurate account, and if the Crown holds itself together, I’m going to call a possible result: allow the Application; Dismiss the Appeal, reserve the delivery of various Judgements on the subject – chiefly on the meaning of ‘reasonable doubt’ which is said to have been settled but, clearly, is not… and maybe the State of Victoria will do the right thing IMHO and repeal S.276(1)(a) for the anti-democratic waste of time and money that it is… not holding my breath, of course.
This is a very reckless prediction, but we Baby-Boomers have to find what excitement we can in this disappearing world.