Compound Probability and the Crown
In his appeal to the Intermediate Court, Bret Walker referred to 13 solid obstacles that pointed to the "impossibility" of the crimes of Cardinal Pell. These condensed the 17 presented to the jury by Robert Richter. The impossibility in question is perhaps best described as practical rather than physical, with the result that the prosecution was able to suggest, however tenuously, that the impossible events were logically possible. This put Pell's case at a rhetorical disadvantage, for as defending, the onus was never on him to prove anything.
Dissenting from the majority, Justice Mark Weinberg nonetheless felt that the obstacles could not be ignored and he took up Walker's point (also made on appeal) regarding compound probability:
1064 In order for the complainant's account to be capable of being accepted, a number of the "things" set out by Mr Richter at  of my reasons, had to have taken place within the space of just a few minutes. In that event, the odds against the complainant's account of how the abuse had occurred, would have to be substantial. The chances of "all the planets aligning," in that way, would, at the very least, be doubtful. This form of "probabilistic analysis," if properly applied, suggests strongly to me that the jury, acting reasonably, on the whole of the evidence in this case, ought to have had a reasonable doubt as to the applicant's guilt.
Richter's ten "things" happening in a five minute interval are listed as:
1. the applicant does not remain on the front steps.
2. he is alone when he enters the Priests' sacristy.
3. Portelli does not enter to help the applicant disrobe, or to disrobe himself.
4. Potter is not there to assist in the disrobing.
5. Potter is not moving between the sanctuary and the Priests' Sacristy.
6. the altar servers are not moving between the sanctuary and the Priests' Sacristy.
7. there are no concelebrant priests in the Priests' Sacristy, or for some reason, they do not disrobe.
8. 40 people, some of whom are adults, do not notice the complainant and the other boy break away from the procession.
9. the complainant and the other boy enter the choir room, having gone through two locked doors, without anyone having noticed; and
10. the complainant and the other boy enter a choir rehearsal which they were required to attend, after being missing for more than 10 minutes, 5 anyone having noticed.
On the supposition that these events are independent, and are more likely not to occur than occur, a probabilistic analysis, at the very least, puts the odds of the compound event at around 1000-1.
In his submission to the High Court Mark Gibson faults this move as rhetoric. Substantially, the only point he makes is that the events are not "independent" and obviously he means that if any particular event happens that makes it more likely that the other happens. Independent events are exemplified by ten tossed coins each landing "heads" how one coins lands has no bearing on how another lands. Dependent events, however, might be exemplified by a particular horse winning a race and the ground being soft (it having rained a lot). Some horses, especially the well-handicapped slower ones with lots of stamina, will have their chances of winning increased when it rains but conversely, others will be jeopardised by the sticky ground. Gibson implies that the events in question involve hidden dependencies, but he gives no reason for this assertion, and so his conjecture is quite worthless. The strength of the argument supported by Richter, and Walker, and Weinberg is not weakened and this is not simply a matter of rhetoric.
Still, it might be worth exploring Gibson's suspicion of hidden dependencies rendering events more probable, and we can attempt this by grouping the different kinds of obstacles. For example, we can consider the contingent events regarding:
Pell's behaviour after Mass
- The behaviour of Pell's attendants
- The behaviour of those busy in the sacristy
- The choirboys' behaviour after mass and its conditions
So that the first class (Pell's behaviour) comprises of events (1&2), and the others (3&4), (5&6&7), and (8&9&10) respectively. It is not easy to discern dependencies across classes, for example, between what Pell was doing on the steps and what the boys were doing around the corner. Nor is it obvious that dependencies exist within classes, though perhaps some far-fetched scenario can be invented that explains the relation for example, that (5&6&7) are all explained by a fire alarm. On the face of it then, Richter's argument stands, and, again assuming that each of the events is more likely not to happen than actually occur, the odds of the compound event proposed by the complainant stands at odds longer than 1,000-1.
This point having been made, we can actually examine our classes to identify further "unlikelihoods." Take Pell's behaviour after Mass. As well as the strange departure for the sacristy (for no assigned reason) we might relate this to three more unusual events. First of all, in assaulting two boys in a particularly brazen manner at a time when he himself was handling sensitive sex-abuse cases - Pell chooses to offend when even though the sacristy was empty he nevertheless knew it would get busy very soon. That brazenness is underlined by the fact that he was a very public figure, as it happens celebrating his first or second Sunday Mass at the Cathedral, entering what at that time just after Mass was a busy area. Second, having assaulted the boys who for all he knew might be the sons of a High Court Judge Pell appears to have done nothing whatsoever to avoid being caught locking the doors, taking the rogues to his lockable office, telling them not to tell and so on. It seems to us that this would be more likely not to happen than actually occur. Third, we might anticipate Pell's Rome interview and realise that Pell has done nothing in the way of preparing an alibi something that also might be taken as unusual.
Let these three "events" suffice as we seek only to make our class of events equal five.
Now, Pell was learning the protocols of the new Cathedral, and as stated, this was his first or second Sunday Mass there; Msgr. Charles Portelli was his MC. It might be supposed that the strange behaviour of the Cardinal heard in Court would have consequences that would affect his "bodyguard." Nevertheless, Portelli (a) says and does nothing about Pell's departure from the steps, and he (b) says and does nothing to Pell about the fact that he has not helped Pell disrobe. Moreover, we can extend this lack of response to Portelli's dealings with others such as Max Potter. He (c) never checked with him whether Potter helped Pell disrobe instead. Let's say we now have another five events.
Regarding the becalmed sacristy at a time when it could be expected to be a hive of activity, we may readily find that fact surprising. Two irregularities. First it would be unusual for the altar wine to be left out normally it was locked away. Second, those collecting the money would go to the sacristy so that it can be placed in the safe. That now makes five unusual events in the sacristy.
As to the behaviour of the boys, it was certainly brazen for them to nick off seeing as they were trying to do their best at a new school, and as we have seen, this was a reasonably special day. For that reason it is a surprise that, in re-entering the Cathedral by the South Transept, the boys persist even though they would have had to go against the flow of exiting parishioners, and again, in getting to the sacristies' corridor, a place where people would be milling about (the altar servers having just returned), it is surprising that the boys continue to poke around (they had rehearsals, after all). Second, it is a little strange that when the boys departed the sacristy "freaking out" they decided to return by the most indirect of routes, the way they came. To us this sounds like a device merely to avoid the problem of how the choirboys did not encounter the incoming altar servers for in Court, and contrary to what the Crown are now submitting to the High Court, the assault happened immediately after Mass.
So, that makes five events in this class, and four fives make twenty. But two raised to the power of twenty is over a million. Our compound event now stands at 1,000,000-1.
Moreover, the first incident cannot be divorced from the second, for if the credibility of the complainant falls at the first then it falls at the second also. Still, the incident was quite surprising. First, it's unlikely that there would have been inclement weather leading to an internal procession as the weather at the airport was reportedly fine. Second, the idea of an Archbishop who would have been at the back of a procession (with other concelebrating priests) pushing past those processing to zone in on a choirboy is bizarre, a brazenness unheard of to Weinberg. Third, all this was supposed to have happened in the corridor between the Priests' and the Archbishop's Sacristy. But Pell's Sacristy was out of order at the time, and so he would have had no reason to be at that particular place. Fourth, from the photographs the corridor is reasonably straight and narrow, and so it seems unlikely if not impossible that somehow the complainant found himself "isolated and in a corner." Finally, this incident was supposed to have happened to just one of the boys as he started his second and final year having been assaulted a couple of months back with the other boy. Surprisingly, however, the complainant never thought to mention this fact to him by way of warning, though apparently they were friends who would "sleep over."
And again, this whole affair is connected with psychological events, what the boys recalled or did not recall. To my mind these are surprising as a whole series of memories (or failures of recall) appear always to be in the direction of what is convenient for the case as if the memories were in fact inventions. Five examples. In the first place, the other boy not only never said anything about his ordeal, but actually denied it twice when asked. He had lived a sorry life of jail and drugs, and this episode might be thought to excuse his behaviour if not make him rich. Yet he kept silent even though his friend could surely corroborate him. Second, however, we find that the complainant had repressed the events, "hidden in the darkest corners of the mind," until it seems the only person who could confirm or disconfirm the events was no longer alive. Third, it's somewhat surprising that at first the complainant got his times so wrong. Not only was the assault supposed at first to have happened in his second year (perhaps when he had mistakenly thought his friend had gone downhill), but it seems that he quite failed to realise that the first incident took place in the holidays even as he insisted that both incidents happened in the same year. Fourth, we can note that despite a walk-through at the Cathedral in 2016 the complainant made no reference to the procession, though later he would recall the route he took to depart from it and in so doing managed to "solve" the problem that, immediately after Mass, Pell would have processed to the West Door and not headed straight to the sacristies area. Incidentally, that the whole incident happened after Mass (rather than choir practice) does not appear to have been established from the first. Finally, it is surprising that the complainant can recall thinking about the assault when picked up fifteen minutes after Mass despite having no recollection of the rehearsals scheduled that day. In fact he even remembers that about half of the boys had already gone home when he got back which actually doesn't make sense.
Another ten events. Our accumulator now stands at 1,000,000,000-1. *
Weinberg, then, finds the charges doubtful. In truth, it seems to us that the whole affair is soaked in surprises. Take that song. Tim Minchin was actually singing to the Cardinal to come home and face the Royal Commission the news that Pell was being investigated by the police was not released until three days later. What a coincidence! Or take Louise Milligan. When she heard that news in February 2016 she was sceptical, and even angry with her editor for having to cover the story, though luckily enough she happened to have got in contact with Phil Scott who had made allegations in 2002, and she met with the man in May 2015. By a curious chance, Scott had made contact with Dr Bernard Barrett from Broken Rites, the very man to whom the complainant would too, in May 2015 with reference, it seems, to a priest who was not actually Cardinal Pell at all! Coincidentally, and in the fourth place, at the time when the police statement was made (in May 2015) we find Milligan in touch with Lyndsay Farlow, a figure who it seems to us is remarkably well-informed. Elsewhere we find Milligan in touch with Detective Rae (who without notes captured that police statement) in reference to Michael Breen. Fifth, a close reading of her award winning research reveals a whole raft of memories of decades-old abuse resurfacing all in or around May 2015, apparently.
And then there's the Victorian Police. Some people have found it surprising that Operation Tethering was set up by Taskforce Sano in 2013 to investigate Pell though no allegations had yet come forward. A fishing expedition? Again, we have found it surprising that, although they managed to reach committal in March 2018, those strange stories of, say, the child dragged by Pell from his bed in the middle of the night (though Pell was miles away), or the nun who got a boy a date with the Cardinal who proceeded to abuse him while watching Close Encounters (though the film was not being shown at the time), or the boy who accidentally had an indecent encounter when he fell on the Cardinal (well, they were water-skiing) all these events serious enough to go before Magistrate Belinda Wallington never once got a mention by Detectives Sheridan and Reed when they met with Pell at the Hilton in Rome. Come to that, the detectives never asked about the ancient swimming allegations (after forty years the victims could still recall the colour of Pell's goggles) that was never mentioned either. In the fourth place we find it a surprise that head of Sano Doug Smith retired just when he did, in March 2016 did he have any input into the walk-though at the Cathedral? (He'd crossed swords with Richter over the Theophanous case). Finally, it's a little surprising to us that, although he had made just four tweets by 2018, they were somehow spotted by Andrew La Greca. Milligan makes much of this witness, who nevertheless she contacted only in May 2016 so how did La Greca know Smith? La Greca is mentioned in three paragraphs of the ruling, but he gets fifteen mentions by the Crown's submission to the High Court. All chance? It's a long-shot: 240 >1012.
A trillion to one is a reason to doubt.
(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: