Before the High Court of Australia Bret Walker used the word "illogic." He was referring to the failure of the majority appellate judges to properly understand what I have called the "hiatus theory." In this paper I want to suggest that a similar illogic pervades the misguided approach of prosecutor Kerri Judd, presenting her case on the next day after Walker.
The context, I trust, will be familiar. The allegation was that two choristers endured a five to six minute assault in the sacristy at St. Patrick's. However, that place was described as a hive of activity after Sunday Mass and so the defence argued that it was impossible for such a thing to happen. There was just no opportunity; other people would have noticed what was going on. To the contrary, the prosecution wrestled with the problem of how to make this scenario possible by postulating a gap or "hiatus" in the activity that would somehow be consistent with the evidence heard in court.
So, while it is as easy as anything to suppose that an unusual event like a bomb scare caused people to go somewhere they wouldn't go normally, such caprice obviously lacks rationale. As I will show, the difficulties that mount up for the Crown make it impossible to improve on such hand waving.
It was commonly agreed that certain time constraints held regarding three sets of people in three different places. As soon as Mass ended a procession would begin at the sanctuary area led by altar servers (a thurifer carrying incense towards the front). They were followed by thirty or so choristers, more altar servers, and then (though the prosecution will raise a doubt here) any concelebrating priests. Finally Archbishop Pell would take up the rear and at least process as far as the steps outside the West door with his MC. The procession would continue and head to the Knox Centre with the altar servers concluding their procession at the sacristy along with any concelebrants. The choir would normally turn right to their robing or rehearsal room. Meanwhile, the sacristan Max Potter who would be at the sanctuary area would eventually unlock the room (it was closed for Mass) and sacred items in the sanctuary area would be cleared away and stored in the sacristy with the assistance of the altar servers.
On this occasion, however, three unusual departures are alleged. First, two choristers nick off from the procession on a voyage of exploration reaching the sacristy by a circuitous route to find some wine. Second, Pell left the steps unaccompanied and headed to the sacristy for some reason (normally he would disrobe with his MC, but on this occasion he travelled alone). In the third place, the sacristan obviously was not doing his job properly (which was to act as a custodian of sacred objects) for he left the room open and unattended for at least five minutes. With these conditions in place Pell proceeded to assault the boys. It is very difficult to see how this is possible.
To spell out the constraints we can mark a sequence of events taking place in the sacristy. We begin with the end of Mass and end at around fifteen minutes later. We suppose that on this occasion there were indeed priests celebrating Mass with Pell, a constraint that the prosecution will seek to eliminate. Thus, in about fifteen minutes at the sacristy we have:
(a) Mass ends
(b) Potter unlocks the sacristy
(c) The first of the altar servers arrive at the sacristy
(d) The last of the altar servers arrive at the sacristy
(e) The other priests arrive at the sacristy
(f) With the assistance of some altar servers Potter clears the sanctuary area taking sacred items back to the sacristy (they come and go)
(g) The hive of activity simmers down after about 15 minutes.
The window of opportunity for the assault arises only if a gap opens up between (b) and (f). This gap (the hiatus) has to be around five or six minutes long and entails a complete absence of any people in the room apart from Pell and the boys. Realistically, the length of the procession means that it takes about a minute to pass meaning that probably the period between (c) and (d) is about one minute. Moreover, the journey time for the whole procession is around five minutes meaning that the period between (a) and (c) is around five minutes. Logically, there are only two spaces for the hiatus, either between (b) and (c) an "early" hiatus - or else between (d) and (f) - a "late" hiatus.
Now, it seems as though an early hiatus was floated, but this runs into two difficulties. The first is that normally Potter would leave a period of decorum on the sanctuary area allowing those who wanted some private prayer time some peace before the tidying up began. This would last around five minutes. Then he would take the lectionary from the sanctuary, go to the sacristy, and unlock the room. By that time the altar servers would be arriving and the activity would begin. The difficulty is that the boys would not be able to get into the room before the servers returned. It was locked.
A second difficulty arises because the boys would be taking a longer route to the sacristy than the servers. Even if they could get there before them only a very short time would remain before the servers interrupted what was going on. The details have been concretely analysed by various commentators such as Keith Windschuttle and Andrew Bolt as the Crown probably know. Perhaps this was one reason why it has come to be definitively abandoned. This leaves us with a late hiatus.
Somehow, then, the five or six minute assault has to take place between (d) and (f). Again, there are two major problems. In the first place, and as we shall see, there is no principled reason for supposing that the "hive of activity" was delayed: it would surely begin when the altar servers had returned. They would do their tasks, get changed (in the room opposite), and be gone. Realistically, there is no time at all between (d) and (f), let alone five minutes.
Second, very shortly after (d) the priests arrive marking event (e). One of the reasons why the room was locked, as the sacristan explained, was because the priests would leave their valuables where they would later disrobe. Moreover, it was also heard that they would stay and chat in the room, including to Pell when he would eventually arrive at some time beyond (g). Realistically, the priests could be in no other place (unless, perhaps, they rushed off). Their presence represents an insuperable problem.
Plainly, then, in order to make the late hiatus feasible these two problems must be dealt with. The demand arises both (i) to remove the sacristan and the servers from the sacristy and (ii) to remove the priests. Again, there appear only two possible approaches. With (i) one has to suppose that for some reason Potter and the servers were elsewhere. With (ii) one has to postulate that, on this occasion, there were no concelebrants. There are then two challenges to which Judd had to respond: (i) lengthening the duration of (d) to (f); and (ii) eliminating (e) altogether. It is the immense difficulty of the challenge that leads the prosecutor into the illogic with which I opened.
Let us now turn to Judd and the first challenge that we can call removing Potter. We will consider a couple of tactics that we can call no stopwatch for the quiet time and the servers get changed before they clear up. The "no stopwatch" move suggests that the period of decorum that began immediately after Mass would actually last longer than five or six minutes (Potter's evidence) even up to ten minutes perhaps because the Dean wanted a word with the sacristan. This would mean that the sanctuary was calm beyond, say, point (d), the return of the servers. Somehow this is supposed to help. Because Judd seeks to draw upon the "evidence" she references the choirmaster who, when cross-examined by Robert Richter, explained that Potter might be delayed if he "was suddenly called by one of the clergy, by the Dean or the Archbishop or whoever." Judd then infers that this delay would impact upon the servers as "Potter is the one that gives the directions to the altar servers as to what to do."
All we seek to show here is the perverse rationale behind Judd's "logic" that gravitates around the central dogma of the complainant's credibility. Our point is that Judd is unreasonable because she has lost all sense of the whys and the wherefores of the situation.
Potter, then, did say that he left a moment of decorum immediately after Mass. He did not move in to clear up immediately. Still, anyone with some experience of a cathedral after Mass will know that this calm is not quite the same as, say, the moments after communion. Mass is over, people would be on their feet having watched the procession past, the post-lude would be booming, the congregation exiting, some rushing, others getting caught in the bottle-neck. There again, some would have their own individual ways of finishing their worship, perhaps to light a candle at a particular shrine and so on. Although what Potter did showed a degree of sensitivity, at the same time there was nothing sacrosanct about this period.
The bottom line was, as a sacristan he just was security-conscious, minding those valuables left in the sacristy. Moreover, his evidence was that after this time of decorum he would take up the lectionary and unlock the sacristy. Perhaps I am not sure but this seems reasonable he would unlock other rooms too, the utility room opposite where the florists worked. Or else he would do other things related to his work.
Now, that work was to keep custody of the sacred items and so, reasonably enough he will be engaged in doing his job without any regard for "stopwatches." But on the supposition that some emergency delayed the decorum then it would follow that the room stayed locked for longer. This would mean that the servers would have to wait outside the door. Common sense, again, would suggest that that delay was hardly life-threatening. Potter would no doubt seek to minimise it but he would not rush. On the other hand, supposing he noticed some women that were particularly devout in the altar area that would not necessarily prevent him from moving elsewhere to let in the servers who he knew would be arriving.
I am speculating here, of course. But what I am really trying to do is try to get inside the mind of a sacristan, one who has custody of sacred objects. There and then Potter had a job to do and, sensitively of course, he got on with it to Richter's admiration the Court heard that Potter would be unlocking the Cathedral at six in the morning. What I am trying to convey is that there was a logic to Potter's actions that Judd's "logic" quite cuts across.
For what Judd seeks is a delayed time of decorum that includes in that period Potter having unlocked the room. In effect, what Judd wants is some eventuality that meant that at that time Potter was not doing his job, keeping custody of the sacred things. For the Court heard that the sacristies corridor was bustling immediately after Mass, and the MC Portelli (in his witness statement) explained how sometimes seven coaches of tourists were parked outside the Cathedral taking in St Patrick's as their number one destination. Portelli repeats the point about security. So we have to suppose that, were there some cause for Potter's delay then some remedy would be envisaged. I mean, Potter would know he could leave his station on condition that someone else could or would stand in the breach.
This also provides us with an answer to the implied contention that if the hive of activity had begun it would grind to a standstill if Potter was delayed by the Dean. McGlone explained in his evidence that the servers did not dawdle and he gave a reason, they were carrying sacred items. So we cannot suppose that if Potter wasn't commanding them the servers wouldn't act. Of course, if he was not around someone might put something in the wrong place and later it would have to be relocated, but they would not just freeze in the corridors.
Do I know all this? Of course, I am both rambling and speculating. But the main point that I am working towards is this that I am extremely confident that we can say what Potter would always do, saving a dire emergency. Potter would take custody of the sacred items. This is almost a tautology. It means, the sacristan would do what sacristans normally do.
This rule is not as trivial as it seems because my point against Judd is that she completely fails to understand it. Rightly she says that Potter did not work according to the stopwatch. Of course, we can imagine the man was flexible. Still, take responsibility for the sacred items was a categorical imperative. The whole point of regularly locking-up-unlocking-and-clearing-away, even if it admitted variations, would not deviate in this regard. So, no matter how many "exceptions" might be found to the details, one simply cannot make them add up to an exception as far as sacristy work goes saving, say, some dire emergency that meant Potter had to abandon his duties.
Thus, the sacristy really cannot have been opened long (and unattended) when the servers returned. Here Judd (and the majority) point to McGlone here who could say that the room was sometimes open when the servers returned. But McGlone would also say that "Max would appear out of nowhere and unlock it" suggesting that the sacristan had things under control, knowing what needs to be done and so on.
Let's now consider a second way whereby Judd tried to "remove Potter" or to be precise, the servers. Walker would take issue with this at the end of the second day, but without the context from the trial transcripts it is not easy to appreciate.
An archbishop has items associated with his office, a mitre and a crozier. I am not sure of the routines, but I am very confident that they would be looked after by the sacristan. Thus, I understand that sometimes Pell might process with these items, but if he were to meet and greet at the steps two acolytes would be deputed to bring these back. How so? I am not clear because I have read more than one scenario, namely, that the acolytes would join the procession at the rear and eventually get to the sacristy or that they would return to Potter via the main aisle. In the text that Judd (mis)interprets they did the latter. How, precisely were these items cared for? The honest answer is I do not know. Did Potter take care of them? For sure, I can affirm that he did.
Now in the text that Judd tortures we hear (under Richter's cross-examination) that after the acolytes had done that job of returning the crozier and the mitre they went and disrobed. What Judd does is, taking these acolytes as servers (which is what they were called), go on to suggest that when the other servers returned this is what they did they would move out of the sacristy after bowing to the cross and then move to the utility room getting changed before they cleared up. But as Walker points out she was clearly eliding two different parts as Richter moves on to speak explicitly of the "other servers." These other servers, the ones in the procession not the acolytes (at line 10) return and bow and "Then they would go and follow directions as to what they should do with the various vessels " (Line 28). To which Potter replies, "Yes, Yes."
Try to imagine Judd's alternative. Potter has thoughtfully arranged a period of decorum when out from round the corner lads in civvies mount the altar area and make off with the silverware.
Incidentally, this passage gives us a clue as to the room being unlocked when the servers returned. Perhaps Potter had to deal with the acolytes at times, but obviously he could not be far away if he was able to give directions after the servers bowed. He would know they were on their way.
To conclude, then, we get another insight into Judd's logic. The reality, I want to say, is that Potter was always doing the same thing, taking custody of the sacred objects. This generalised activity would consist in a multiplicity of detailed activities, each of which might vary within degrees. However, whatever the variations they could not add up to the sacristan not doing his job for the Court certainly never heard that. But what Judd manages to do is take the various aspects of Potter's task and try her best to put them together in such a way as to leave the vacant room a place for mischief. But that would contradict the master rule that I have been gravitating around, the sacristan would do what the sacristan would normally do. Of course, the rule that Judd is gravitating around is this, the credible complainant's story is to be believed. However, I am arguing here that the story about the sacrilege in the sacristy simply contradicts what the Court heard from Potter. It would mean that he was not looking after things.
Let's now turn to the second challenge, removing the concelebrant priests. The Court heard that there would be at least two priests celebrating Mass at the Cathedral for after all, the presbytery had seventy rooms and sometimes priests would visit. The Court also heard that they would stay in the room and chat, still being around when Pell returned after his meet and greet. They pose the most enormous problem for a late hiatus. And of course, if there were priests around then at least the room would be secure. How does Judd respond? Because we do not know who the priests were she imagines that there weren't any. And (with Mark Gibson) she seizes on a lack of recall from McGlone.
But this is cherry-picking the evidence, for McGlone did actually speak of other priests "floating around" before Mass implying that they would need somewhere to get changed after and McGlone, if he was carrying the thurible (which is what he preferred), would be at the front of the procession, something that Judd appears not to appreciate as at one point she says, "But McGlone, who talks about the bowing to the crucifix, so the end of the procession, does not have priests with him."
Judd has another device for removing the priests. Justice Weinberg had upheld Judge Kidd who had not permitted the moving animation. The purpose, incidentally, was to try and map out all the concrete details to show how preposterous the complainant's story was. But Weinberg thought that, by portraying a large number of concelebrants in the sacristy with Pell and the boys, the video was tendentious. Judd seizes on this for her crutch. But the fact is, it was Weinberg who was most careful to marshal the evidence on the concelebrants they are quite ignored by the majority and here I shall simply cut and paste what I have already written:[i]
The dissent has 14 mentions. In outlining the prosecution case we learn that concelebrating priests would be at the rear of the procession;[ii]that it was Potter's responsibility to lay out their robes;[iii] and that he was adamant that he would lock the sacristy, "because the concelebrant priests had left their coats and valuables in the room."[iv] In "powerfully exculpatory"[v] evidence (because he had retired that Christmas) Finnigan "could also recall that there were other priests concelebrating on those dates"[vi] and he knew that they got changed in the Priests' Sacristy. Portelli could recall that priests were present at the time Pell disrobed[vii] and Potter could recall that they would "talk among themselves while awaiting the Archbishop."[viii] Indeed, even the complainant could recall that Pell was always assisted by other priests.[ix]Rodney Dearing recalls seeing them still there in the bustling sacristy area when as an altar server he would end the procession at the sacristy.[x] Richter's compounding probabilities submission is recalled,[xi] and the presence of the concelebrating priests in the moving animation that was not permitted by the judge.[xii] Weinberg also has the word "clergy" in a transcript of Mallinson under cross-examination with regards to the busy sacristy.[xiii]
Nor does this exhaust the evidence on the presence of the priests. Although Walker barely mentions it (though he points out that the complainant recalled the concelebrants!), those other clerics checkmate the Crown.
We shall conclude here. Soon the High Court will hand down its verdict. It seems to us that the judges were attentive and intelligent in their questioning as if to say they appreciated the schematic analysis I outlined with my (a) to (g). Judd, of course, grasps how difficult the problem is and uses her ingenuity always to "look for loopholes" in the evidence.
By this I mean the following. Because the sacred items were valuable they needed caring for and so a space was dedicated to this end and roles and tasks and routines set up to ensure the end was attained. That's why the sacristan was so important. His actions were orientated to this end. However, what that meant in the most concrete of details encompassed a multitude of variations. This gives Judd her opportunity. While Potter, we presume, was able to depart from his routines but yet remain a good sacristan (taking care of the sacred items well) Judd imagines that because this and this and this can each change individually (still with Potter the good sacristan) then she is entitled to suppose that this and this and this all taken together was what the evidence permits - so that Potter has in fact been a poor custodian.
For each of her individual moves (this and this and this) Judd will torture the evidence. This gives her a sense of legitimacy. Nevertheless, her conclusions are perverse since she ends up with Potter relinquishing his duties, as if he might in a bomb scare or some such extreme event that the capricious can always postulate. So although her "logic" purports to be evidence-based it is anything but.
This is the illogic of Kerri Judd. For the long and the short of it was that the whole story was deranged nonsense - exactly how Pell put it in Rome when faced with the allegations for the first time.
This is because, ordinarily at least, the crime was situated in a room at a time when it would be (a) locked and then (b) a hive of activity. And as I have tried to show, there was a perfectly good reason for all this: the sacred items needed looking after. Moreover, nothing could be less complicated than the idea I have been explaining in my ponderous convolutions, as Pell explained so forcibly to detective Reed. Yet it manages to become immensely complicated as my refutations have become. With a complicated knot one has to twist one's fingers in complicated movements to untie it!
Honestly, though, the knot should never have become so tangled. The sole reason for this nonsense is the central dogma of believing the "victim" come what may. This was the fundamental failing in the Carl Beech case in the UK that led appropriately enough to the charge of "institutional stupidity" as applied to the Metropolitan Police. Such is the terminus of Juddian illogic. This is what Canberra must undo as soon as possible.
(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: 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
[ii] Weinberg, 364 and see also 762. Potter also could recall their position, 727.
[iii] Weinberg, 495.
[iv] Weinberg, 517.
[v] See Weinberg, note 199.
[vi] Weinberg, 567 and see 734 for "a number of" priests as Finnigan could recall.
[vii] Weinberg, 716. Presumably this was only when the Archbishop's Sacristy was not being used by Pell.
[viii] Weinberg, 727.
[ix] Weinberg, 736.
[x] Weinberg, 738.
[xi] Weinberg, 841.
[xii] 1128. Weinberg regards this as tendentious.
[xiii] Weinberg, 737.