Fri, 12 Aug 2022

Kerri Judd redaction adds to difficulties following Pell legal process

(Op-ed) Chris Friel
18 Mar 2020, 23:08 GMT+10

"But he hasn't got anything on," a little child said. "Did you ever hear such innocent prattle?" said its father. And one person whispered to another what the child had said, "He hasn't anything on. A child says he hasn't anything on."i

This note discusses a redaction in prosecution counsel Kerri Judd's presentation to the High Court of Australia Thursday 12 March during the Cardinal George Pell appeal. The audio video of the whole (unredacted) presentation has been uploaded by the High Court here.ii I have placed the transcript along with references in the left margin here.iii The video at 3.01:39 corresponds to the redaction at 5940, namely:

If I could just jump back to page 205. This is only to do with incident 1, but he marks where it is that he was standing. You will see his initial there and then you will see the "B" - or the other boy, and you will see his initial there. I am being careful about that because I know that is a redacted, that is in the redacted book, but that showed that that is where he says they were standing at the time, where they were positioned at the time that that offending took place.

Now, just in terms of the evidence to do with the layout and how he got that so right, if we could start with page 37 of the respondent's further material, and I am going to do this quicker than what I was otherwise going to do, but if I just mainly focus on 37, line 17:

[REDACTED 2:38:10-2:39:03]

So there is other material but that is the main bit in terms he describes it. The important bit is he is in that room at a time when he has to be able to get into that room, so it has to be unlocked, and he has to be in that room for long enough to be able to poke around in that cupboard to see the wine, wine that is normally also locked away.

Now, what is redacted seems to be taken from J's cross-examination (which I have not seen) upon which Mark Gibson drew in his closing address. This includes the text:

We entered the room and noticed to the left of us as we entered there was a wood panelled area resembling a storage kitchenette kind of thing. We were poking through this cupboard and we found some wine. ... It was a wood panelled surface with storage cupboards. It was a little bit concealed, but not too concealed. We found some wine in that panelled area.

The wording of the unredacted version is not precisely the same, for example, the phrase "storage kitchenette" occurs twice (in reference to the furniture immediately to the left).

We may note that this material was referenced after the verdict by journalists, for example, by Melissa Davey. She reports the summation as follows:

In his succinct but powerful closing remarks, Gibson asked the jury to consider how the complainant would have known the layout of the priest's sacristy, and that there were wooden panels, a storage cupboard, a kitchenette and sacramental wine in there. It was not a place choirboys were allowed to enter. Yet the complainant was able to describe the room.

"You might ask yourselves how would he know that unless he was in there," Gibson said. "How does he know about the concealed alcove area without actually being there? How does he know it's a storage-kitchenette kind of thing and there being a wood-panelled area if he's not been in there?

"How does [the complainant] know that that was where the wine was kept?"iv

Moreover, we can turn to the dissenting voice in the August ruling. Mark Weinberg reports on the cross-examination:

429 In cross-examination, however, the complainant conceded having been taken on a tour of the Cathedral when he first joined the choir. He did not dispute having been shown the various sacristies on that occasion.

430 The complainant said that immediately to the left, after entering the sacristy, there was 'a wooden panelled area ... resembling ... a storage kitchenette ... ' The double doors to the sacristy were '... unlocked, perhaps ajar', with '... one door bolted closed and the other one able to be opened.'

431 When 'poking' through a cupboard, the boys found some wine in a '... dark brown stained bottle.' The wine was red or 'burgundy' coloured, and it was a 'sweet red wine.' The boys began 'having a couple of swigs' in the alcove area. It was at that point, according to the complainant, that the applicant entered the sacristy. He was robed, and alone.

432 The applicant 'planted himself in the doorway' and said something like 'what are you doing here?' or 'you're in trouble.' The applicant then... undid his, his ah, his trousers or his belt. Like, he started moving his, underneath his robes ...

It is slightly puzzling, then, that this should be redacted. Jeremy Gans, who was present in Canberra, tweeted on the next day presumably before the video was uploaded:

Just the Wed morning so far, it seems. Thursday may take a while as the transcript has a redaction (where Judd read out innocuous parts - describing the sacristy furniture - of the suppressed evidence of the complainant.)v

An "innocuous part ... describing furniture"! Perhaps Gans is clarifying that the redaction made no reference to J's identity or anything like that. Perhaps again he means that this material involves a section from the "redacted book" mentioned by Judd. Speculating, the point might have been that for the rules of fairness that governed the High Court certain pieces of information were not deemed admissible as evidence, for example, a police statement that was not tendered and thus not cross- examined would not be permitted, either to defence of prosecution but I am guessing.

From my point of view, however, the text is anything but innocuous, indeed, an "innocuous redaction" seems self-contradictory. Why bother to redact something that can do no harm? For as I have explained very carefully, this material is highly embarrassing to Gibson and indeed, the video shows him to Judd's right, helping her out (the word "B" refers to the other boy and so on). When Judd (who knows that she is skirting around the redacted material) references the "storage kitchenette" (the one immediately to the left as one enters) Gibson takes a look at his watch and makes a note.

Let us offer our guess as to what was happening. Here we begin with a reading of the dialectic that played out before the jury in the closing addresses. Gibson went first and we focus on just two points made, positive and negative.

For the Crown, the positive point was that the complainant located the wine in the alcove. Moreover, it was even advanced that he had been consistent. I have shown beyond reasonable doubt, however, that this claim cannot be For one, the informant in this case had told Pell in the Rome interview that the complainant had found the wine in the "storage area" immediately to the left of the door, and never once mentioned the alcove. What was true, no doubt, was that post-2016 the complainant consistently located the wine in the alcove.

Negatively, Gibson had to address the problem of a defect in the complainant's knowledge. For at the March 2016 walk-through organised by the informant (detective Chris Reed) the complainant had looked at the storage area immediately to the left it was indeed a kitchenette as it had two sinks, not to mention a bottle of wine and said that it was just the same as back then.

In fact there were three differences from 1996. First, the panelling was not at that time wood but vinyl, having merely the appearance of wood ("woodgrain"). Second, the doors were very different. Third, the sinks were not installed until 2004 the furniture was used for storing albs. It was a "wardrobe," as Portelli had explained in his police statement given to Reed in December 2016, that is, seven weeks after Reed had visited Rome. To this challenge Gibson submitted to the jury that a boy would hardly know the difference between woodgrain from wood panelling which is why he described the furniture as "eerily similar." Gibson was anticipating Robert Richter's response the next day.

At this juncture we may interject that the Rome interview, though tendered as evidence, seems to have been little discussed in Court. It is in the public domain, and it indicates very clearly for those who take the care, that the 2016 version of the story was markedly different from 2018, both in the location of the wine and the details of the offending (which now gravitated to the alcove area). Thus, while Richter could perhaps have drawn the jury's attention to the discrepancies in successive narratives, that point was never made. The defence made hardly any counter to Gibson's (false) claims about the complainant always locating wine in the alcove. The suggestion was floated (unconvincingly) that maybe as a boy he had been on a tour, and that was how he knew the layout.

Reasonably powerfully, however, Richter put it to the jury that a wardrobe for hanging albs (with very different doors) could hardly be mistaken for kitchenette with sinks. Moreover, the opaque bottle on those sinks attracts suspicion as only clear bottles were used in 1996. But Richter missed the chance to make the immensely powerful point that this meant that in the early versions the wine was found in a wardrobe, a blunder that does nothing for the complainant's reliability. The jury would not have been quite so impressed by Gibson if they had had their attention drawn to the salient details related in Rome.

There were other implications - the chronology is damning. Reed said the boys found wine in the storage area. Later Reed discovered that that area was then a wardrobe. Later still the complainant changed his story and located the wine someplace else. This scenario was never one that Pell's defence team suggested (whatever their private thoughts). That Pell had suffered from what we might call a lack of due diligence in the police failing to chase up key witnesses was certainly a factor that Walker addressed before the High Court, but though Pell had been treated unreasonably Walker stopped short of alleging a miscarriage of justice.

It seems to us, however, that Gibson would have had some idea of what was going on. In fact, it is noteworthy that of 14 instances of "alcove" we have seen in trial transcripts, 3 are from Potter, 1 from Portelli, and the other 10 are all in that closing address. Richter, it seems, was blind-sided by this ambush sprung on the jury at nearly the last moment. For it was put to the jury that the complainant had always located wine in the alcove, something that had quite passed Reed by in 2016.

With absolute consistency Judd affirms the "authorised version." She even drops in the word "wardrobe" which only appears in Portelli's witness statement and never during the trial - the only other usage I can think of is the "non-legal commentator" you happen to be reading. I have extracted all the relevant texts from Judd on this point.vii

But the redacted version is a blemish. Why? Because it is said that the complainant said the boys noticed a storage kitchenette. That is, he spoke of a "kitchenette" which only makes sense if there are sinks, and in that place there were no sinks, not immediately to the left of the door, not in 1996.

We may break down the cases. Either it is false that the complainant referred to a storage kitchenette in his descriptions of the layout or else it is true. If it is true then his first mention was either after the walk-through or else it was before (in his police statements, say).

The first case is embarrassing for anyone who makes that false claim whether or not they have seen the 2015 police statements. The second case is embarrassing for those who would propose this knowledge as indicating a genuine memory for there is no dispute that the complainant was in the sacristy on Easter Tuesday 2016 looking at, among other things, a bottle of wine sitting on a kitchenette. Finally, the third case is acutely embarrassing. For if the complainant had spoken to the police of a "storage kitchenette" in the room, apparently recalling his traumatic experience in 1996, he would have appeared vindicated when he visited the sacristy with the police and noticed how things were just the same. That "vindication," however, would have (or should have) collapsed when they learned that actually, the sinks weren't installed at the time.

It is this cat that Judd lets out of the bag. Despite having the best of coaches at her right, and despite referencing only what was in the public domain, Judd's disclosure damages her own case irreparably. For ever so innocuously, she has let it slip: We entered the room and noticed to the left of us as we entered there was a wood panelled area resembling a storage kitchenette kind of thing. The complainant noticed the furniture of the future!

Judd's, "Now, just in terms of the evidence to do with the layout and how he got that so right," bounces back, "Now, just in terms of the evidence to do with the layout and how he got that so right." I mean, the real problem for the Crown is not that the complainant knew so little but that he knew so much. How could he speak about the post-2004 sinks unless he had paid a recent visit or been recently coached?

And so it comes about that in a transcript Judd's words have been redacted. Not in the audio-video, however, a point that might strike historians of the future (my intended audience), as ironic. For a whole year passed before anyone made a transcript of Cardinal Pell's interview.viii The absence of that transcript meant that one or two very obvious truths never got spelled out as they could have been.

(The writer Doctor Chris Friel taught maths for many years before undertaking, first, a masters in Philosophy, and second, doctoral research on value and credibility in the thought of Bernard Lonergan. In 2018 he investigated at length the "purposely timed hysteria" of the pro-Israel hawks in the UK amidst the antisemitism crisis, and commencing in 2019 has devoted an equally lengthy exploration of the Cardinal George Pell case and its context).

Also by Chris Friel: Cardinal Pell - The Case for the Prosecution | Counsel for George Pell argues for conviction to be set aside | Reviewing the Pell appeal which goes before high Court on Wednesday | George Pell Case - The wine in the wardrobe revisited | Evidence in trial of Cardinal George Pell confusing and inconsistent | Hiatus theory in Pell trial looking increasingly wobbly | Cardinal George Pell conviction, uncanniest of them all | Where were the concelebrant priests if Pell was in the sacristy? | Juggling of times in Pell case only raises more questions | Pell alibi looms as crucial factor in High Court appeal | Chorister supported Crown case against Pell | The Pell case - "Having reviewed the whole of the evidence..." | Cardinal Pell's Innocence or Guilt - now a matter for the High Court | Credibility of George Pell accuser under scrutiny | A Critique of Ferguson and Maxwell | How the Interview Changed the Story | Cardinal George Pell learned of charges against him in Rome Interview

Related story: High Court of Appeal in Australia to review conviction of Cardinal


iv abusing-past-caught-up-with-him-in-courtroom-43
viii Later (in the video at 3.08:18 and see previous endnote), and at the prompting of Gibson, Judd, in her solitary usage of the term, refers to a storage kitchenette here meaning not the furniture immediately to the left of the door but the sacrarium in the alcove. It would appear from this that Judd has not appreciated the distinction we are bringing to the readers attention.

Pictured: Justices of the High Court of Australia: (from left to right) Justice Nettle, Justice Gageler, Justice Kiefel AC, Chief Justice French AC, Justice Bell AC, Justice Keane AC, Justice Gordon

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