Page:Pell v The Queen.pdf/14

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

28 In an attempt to confront this difficulty, the prosecutor applied to the trial judge for an advance ruling granting leave to cross-examine a number of his witnesses with respect to evidence that was expected to be unfavourable to the prosecution case and, in the case of the sacristan, Max Potter, with respect to a prior inconsistent statement. The trial judge held that evidence adduced by the prosecution that was inconsistent with, or likely to contradict, A's account of events, was relevantly "unfavourable". His Honour granted leave to the prosecutor to cross-examine a number of witnesses (and foreshadowed the grant of leave in relation to other witnesses) with respect to six such topics.

29 These topics were: (i) whether the applicant was always in the company of another, including Portelli or Potter, when robed; (ii) whether the applicant always greeted congregants on the steps of the Cathedral following Sunday solemn Mass; (iii) whether the applicant's vestments could be moved to the side or parted so as to allow exposure of his penis; (iv) whether the doors from the south transept giving access to the sacristy corridor and the doors to the priests' sacristy were always locked in the period following Sunday solemn Mass; (v) whether the sacramental wine was always locked away and could not have been accessible; and (vi) whether it was possible for two choirboys to separate from the procession without being noticed. The leave granted, at least with respect to topics (i) and (ii), reflected the trial judge's satisfaction that the anticipated evidence, if accepted, excluded the realistic possibility of the offending having occurred as A described it.

The prosecutor's opening

30 In the event, the prosecutor pursued very limited cross-examination of his witnesses pursuant to the grants of leave. In opening his case to the jury, the prosecutor acknowledged that there were a number of seemingly irreconcilable differences between A's account and the evidence to be given by other prosecution witnesses. As the Court of Appeal majority encapsulated it, the prosecution case