The Archbishop and the barrister

Last Friday, Dr George Pell, the Roman Catholic archbishop of Sydney, named his legal counsel in the forthcoming church inquiry into allegations that he abused an underage boy in 1961. He announced that he had retained Michael Rozenes QC, the former commonwealth director of public prosecutions, as his barrister.

The church inquiry will be headed by Alec Southwell, a former Victorian Supreme Court judge. Jeffrey Gleeson, a Melbourne barrister, and Tim Mulvany, a solicitor with T.J. Mulvany and Co., would be assisting the commission in its investigation of the alleged abuse of a 12-year-old boy by Dr Pell at a holiday camp at Phillip Island. Pell has denied the allegations and indicates that he will contest them vigorously.

Questions have been raised about Rozenes’ involvement following the revelation that he acted for the complainant in an unrelated matter some 20 years ago. Many observers feel this raises some interesting questions.

I think it is questionable that a lawyer should act for Dr Pell in this matter after having had privileged access to and communication with the complainant in a private matter, says Bernard Brown, a spokesperson for Broken Rites, a Melbourne-based sex abuse victims rights group.

David Faram, the executive director of the Law Institute, would not be drawn on specific details of the case but he agrees that the situation does, in a sense, raise some fairly significant questions.

Although a spokesperson for the Victorian Bar Association would not comment without further information regarding the prior case, one eminent Melbourne QC was less equivocal in his assessment of the situation.

Phil Opas, a retired QC with a distinguished career as judge advocate-general of the Air Force for 11 years and deputy president of the Administrative Appeals Tribunal, feels that Rozenes should not have accepted the brief.

It is clearly a conflict of interest, Opas says, and I don’t think it matters what the original matter concerned. If you’ve acted for a party in any proceeding, you cannot fail to bring knowledge to the discharge of your duty, confidential information which you have learned as his counsel. That’s such an obvious conflict.

Credence is absolutely crucial to any case, but it’s especially so in matters where it is word against word. Especially where there’s no material evidence or eyewitnesses.

Appearance is so important in the law, and justice must be seen to be done to a reasonable observer, and a reasonable observer would say that you can’t act against a man whom you have previously acted for.

You can’t help but form an opinion about the character and credibility of any of your clients.

Such information was obtained in what is a confidential and privileged relationship, and all I can say is that I would not accept a brief which raises that particular conflict.

Rozenes was admitted to the Bar in 1972, he became a queen’s counsel in 1986. Six years later, he was appointed as director of public prosecutions for the commonwealth.

Rozenes is no stranger to controversial cases or high-profile clients. He recently appeared as counsel for celebrity stockbroker Rene Rivkin but undoubtedly his most celebrated client was Ned Kelly.

Two years ago Rozenes took part in a televised retrial of Australia’s favourite bushranger and argued to resounding applause that the prosecution wanted to convict Kelly for who he was, not for what he had done. Kelly’s killing of a police officer was a simple case of self-defence, he said -“ a line never pursued at the original trial.

Rozenes this week reluctantly confirmed that he had indeed, acted for Pell’s accuser in an unrelated matter 20 years ago, but refused to be drawn on what kind of case, or whether he or the Catholic Church was aware of this before he was asked to represent Dr Pell.

For reasons that I can’t go into right now, I can’t discuss this any further, he said, and for reasons which will become clear in due course.

No matter what emerges from the inquiry it is difficult to imagine anyone being happy with its outcomes.

This is, first and foremost, a church inquiry, Bernard Brown says. The Catholic Church has organised it, selected its commissioner and his two assistants, and is funding the whole event.

Brown also believes that information on the complainant’s past run by some media outlets as soon as the inquiry was announced could have come only from Church sources.

Church sources have already attempted to smear the complainant by releasing personal information about his past to the media. I believe their aim was not merely to discredit him, but also to discourage any other witnesses from coming forward in this or any other cases, Brown says.

Under terms of reference for the inquiry announced last month, the commission will hear evidence in closed session and neither Dr Pell nor the alleged victim will be allowed to reveal the contents of the final report to anyone other than their advisers.

The decision as to the release of any report will be in the hands of the co-chairmen of the Catholic Church’s national committee for professional standards, Archbishop Philip Wilson and Brother Michael Hill.