Sun, 20 Sep 2020

Mellis Davey: The Wine, the Switch, and the Wardrobe

(Op-ed) Chris Friel
09 Aug 2020, 09:02 GMT+10

Melissa Davey just a few days ago brought out her book on The Case of George Pell. Davey has followed the trial closely and I have often found her observations astute. When Judge Kidd in his denunciation spoke of the two boys sobbing in the sacristy it was The Guardian reporter who tweeted that we had not heard these tears before. In the UK her Five Times Guilty was splashed as soon as the suppression order was lifted, and very pertinently Davey reported on Mark Gibson's closing address:

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?"

I now realise better than I did at the time that these considerations made an impression on me and eventually I was able to make some progress. I was able to work out that the complainant cannot have originally located wine in the alcove that area cannot have been mentioned in 2015 when J made his complaint. In fact, as repeated in his 2016 walk-through, he said that he located it in the storage area immediately to the left as one enters the sacristy. He had already described the doors (plural) being wood panelled and when in front of the furniture he affirmed it was just as he had recalled. Thus Gibson was able to spring his crucial experiment on the bamboozled jury.

For the fact was, the furniture was now very different. In 2003/4 sinks had been installed and so the storage area was not the same at all. In 1996 at the time of the allegations the cupboard had been a wardrobe used for hanging albs. Moreover, at the time the door (singular) was concertina vinyl. That is, although the furniture was wood panelled, the doors were wood grain. That detail (of the concertina partition) was indeed "recalled" in 2018, but by that time the police had learned about the changes. They took (supplementary) statements from both Potter and Portelli and must have realised that the complainant had been caught cheating. Gibson's question boomerangs: how would he know that unless ..

Did the High Court of Australia appreciate all this? They never say. But they asked detailed questions about the interior of the layout which they clearly knew well. Their Honours were content to repeat the complainant's evidence:

15. They went inside and were "poking around." In a cupboard in an alcove they found a bottle of red altar wine. They had barely taken a couple of swigs from the bottle when the applicant appeared in the doorway. He was standing alone in his robes. He challenged them, saying, "[w]hat are you doing in here?"

These, I take it are words to the wise. Their Honours know as well as anyone who has glanced at the photos that what was described is quite impossible. Anyone in the alcove is quite invisible to someone standing in the doorway: the storage area (now a kitchenette, back then a wardrobe) blocks the line of sight.

What happened, of course, was that because the story of the wine in the wardrobe had to shift (so that the boys found wine in the alcove instead) the scene of the offending had to be re-edited. So it is that the boys are now assaulted, crouching in the corner. In the original version it had happened in the middle of the room.

Now I had supposed that Davey was familiar with these developments as the awkward details are quite passed over in her podcast with David Marr after the HCA. But turning to her book (published last week) I see that the old story is repeated. Thus:

At this time, the boys entered the unlocked priests' sacristy to poke around. The complainant had told the court, 'We were being naughty kids, having a look around. We entered the room and noticed to the left of us, as we entered, there was a wooden-panelled area resembling a storage kitchenette kind of thing. We were poking around this cupboard, and we found some wine.' The wooden-panelled surface with storage cupboards was 'a little bit concealed, but not too concealed. We found some wine in that panelled area in the cupboards. The wine was in a, like, a dark-brown stained bottle. We were excited, feeling mischievous. We found the bottle and we opened it, and we started having a couple of swigs of it.' If the abuse had never occurred, how could the complainant have been able to so accurately describe a room so off-limits to choirboys and that was ordinarily locked, Gibson asked the jury. While there had been a few changes to the room over the years, the complainant had accurately described the room as it was in the latter part of 1996. Potter gave evidence that supported the complainant's description of the room, the location of the bench and the sink, known as a sacrarium, and confirmed the storage location of the wine. 'How does [the complainant] know it's a kitchenette kind of thing without having actually been there, as he says he was?' Gibson asked the jury. 'We know from Potter that there were wood panels back in 1996. How does [the complainant] know where the wine was kept?' If the complainant was having a fantasy, it was a very accurate one. In his cross-examination of the complainant, Richter had put it to him that he would have been given a tour of the priests' sacristy as part of his induction to the choir. The complainant could recall no such part of the tour. But, Gibson said, '[Whether he had or hadn't had a tour of that room doesn't mean that he would remember the intricacies of the room as to where things were, including whether it's got an alcove where the wine was stored.' At one point during the cross-examination, Richter had said to the complainant, 'Prior to the incident that you alleged happened, the assaults, you had seen inside the sacristy.' Richter did not ask it as a question, but stated it as though it were a fact. The complainant had replied, 'I can't recall.' Richter: You were taken, were you not, on a tour of the cathedral when you joined the choir? The complainant: I would have [been], yes. Richter: And you were shown the sacristies? The complainant: I have no recollection of that, no. Richter: Do you dispute it? The complainant: No. When Pell entered the sacristy, the complainant said, '[W]e're in the corner of the room where the cupboards were and we heard a bit of noise approaching, and we were trying to quiet down a little bit, and then he entered the room. He was alone. He was in some robes. He planted himself in the doorway and said something like "What are you doing in here?" or, "You're in trouble." There was this moment where we all sort of froze, and then he undid his trousers or his belt, like he started moving underneath his robes.[i]

This is not perfectly faithful to what the second jury heard from Gibson. I have explained in many writings why I think that the prosecutor was bamboozling the complainant had not always located wine in the alcove. But even so, Davey is not exact with her citations. Thus, Gibson did not "know from Potter." He was at that time referring to Portelli, and actually, Gibson was quite misleading. Originally the complainant had referred to wood panelled doors (plural). But in 1996, as indicated, they were vinyl and Gibson even invents the hybrid "concertina panelling" to obscure the error. Davey's readers were not helped by the journalist's notes at this point.

Moreover, Davey quite omits Richter's closing address in which he supplies the counter, that at the walk-through when before the storage kitchenette (immediately to the left of the door, not, then, the alcove in the corner) the complainant affirmed it was just the same though the sinks were not there at the time. To repeat, this was where the complainant said the wine was found.

To be fair to Davey, though, she was quite accurate as regards the complainant recalling how as he entered the room he "noticed" immediately to the left a storage kitchenette kind of thing one, in fact, that would be installed eight years in the future. And her discerning readers can at least work out for themselves the nonsense about concealed boys spying a flasher standing at the door with the wardrobe in the way.

Let's briefly address the question of the tour. At first blush it seems as though the defence argument is weak. Why would a teenager recall such a thing? But the fact is, it was the complainant who had introduced the idea, and it was he who was dodging the issue. For according to the mother of the other boy J had told her that the boys "used to play" in the back rooms of the cathedral. At committal she repeated this under cross-examination, though the complainant denied it saying he had never been in that room before. When Richter pressed him, however, it was he who volunteered the detail. Davey implies that Richter is leading the witness ("Richter did not ask it as a question but as a fact"), but actually he was merely recalling what the complainant had already said.

It's possible, then, that the complainant really had recalled something of the decor after all. He had previously been an altar boy, and perhaps had taken a special interest in this space that later became the anchor for his deranged fantasies. He would have been able to peek inside the room while traversing the sacristies corridor and may have made the natural but mistaken guess that the doors were wood panelled.

Let's turn to "evidence" that the majority at the intermediate appeal find even more striking. The complainant located the "correct" sacristy. By correct I mean the room to the West, the Priest's sacristy. This contains the wine and was where Pell (who would later use his own adjoining sacristy to the East when it became functional) happened to robe in 1996. Davey:

The complainant had said the abuse occurred in the priests' sacristy, not the archbishop's sacristy, and evidence had comprehensively shown that the archbishop's sacristy was not in use at the time the offending was said to have occurred. How would the complainant have known this if he was making the abuse up, Gibson asked the jurors, especially given that both sacristies were off-limits to choirboys? Not only that, but the complainant had accurately described the room, not as it was at the time of the trial, but as it was back in 1996, as supported by photographs and evidence from people such as Potter and Portelli.[ii]

Actually, there is no clear evidence that the complainant did get the right room at first. He knew that there were "chamber" rooms along the sacristies corridor and he identified the right room in the walkthrough videoed for the trial. But he had not previously identified the assault as taking place in the West room. What happened was that the photographer arrived at the cathedral on 29 March 2016 in the afternoon and was directed by the detective in charge of the case (Chris Reed) to take (28) photos. These included the "correct" sacristy, but ignored the others, and incidentally, within that sacristy the kitchenette immediately to the left of the double doors is photographed along with a bottle of wine the alcove being quite ignored. Then in the evening the complainant gave his interview for around 7 to 9 minutes. Certainly, this centred on the priests sacristy but obviously, the evidence might well have been directed towards this particular room where the photos had already been taken.

Not that this is the significant point, really. For it seems as though, in inclement weather, the choristers would file past this corridor before Mass and then meet up with the celebrants and the altar servers. If the complainant remembered anything from his two years at St Patrick's then he might have recalled Pell emerging from the priests' sacristy (as that was the only one that was used at the time) and naturally he might suppose it to be where Pell was based.

Several other points could be made to show how specious Gibson's question is, but let us leave matters here. We have looked at just two passages from Davey of evidence deemed relevant. To our mind they certainly are, but not for the reasons supposed by the Crown prosecutor and the Director of Public Prosecutions (Kerri Judd). For these details (the complainant's "knowledge" of the interior of the "correct" sacristy") represent the only scraps of corroboration that those prosecuting could find. A close examination, however, reveals a disturbing pattern. The complainant was "helped" to get his story right.

We could give many examples of the way the story evolved, but to our mind, this one takes the Tic Toc. Melissa Davey tells a good story, but she has yet to narrate The Wine, the Switch, and the Wardrobe.

[i]Davey, Melissa. The Case of George Pell (pp. 145-146). Scribe Publications Pty Ltd. Kindle Edition.

[ii] Davey, Melissa. The Case of George Pell (pp. 230-231). Scribe Publications Pty Ltd. Kindle Edition.

(Pictured: Melissa Davey. Credit: Scribe Publications).

(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: A just conclusion to the Pell saga | Inquiry of prosecution into Pell should follow High Court ruling | A case of the man who knew too much - The Pell saga | Trials and tribulations of Barwon's highest profile prisoner | The final piece of the puzzle in the Pell case | 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 stories:

All seven High Court of Australia judges vote to acquit George Pell | High Court of Appeal in Australia to review conviction of Cardinal

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