Page:Pell v The Queen.pdf/15

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

was that the evidence of the witnesses apart from A left open a realistic possibility that the offending that he described had occurred.

The applicant's forensic disadvantage

31 The trial judge was satisfied that the applicant had experienced a significant forensic disadvantage in being confronted with allegations of criminal offending more than 20 years after the events were said to have occurred. His Honour informed the jury of the nature of the disadvantage and directed them to take it into account when considering the evidence. His Honour's instruction as to the nature of the disadvantage covered the following considerations: (i) the delay meant that the applicant had lost the opportunity of making inquiries and exploring the alleged circumstances close to the time of the alleged events, which may have uncovered additional evidence throwing doubt on A's allegations or supporting the applicant's denials; (ii) most of the opportunity witnesses could only give evidence of practice or routine whereas, had the trial been held on a date closer to 1996, more might have had specific recall of the subject events; (iii) the effluxion of 20 years or so meant that some witnesses no longer presented the lucid and coherent evidence of younger men; (iv) the Dean of the Cathedral in 1996, whose evidence would have been material on the issue of the applicant's movements following Mass, was in a nursing home and incapable of giving reliable evidence; (v) the passage of time diminished the capacity for the defence to fully test A's evidence; and (vi) B would have been a material witness.

The Court of Appeal views the recorded evidence

32 The audio-visual recording of A's evidence at the first trial was admitted at the second trial as if its contents were A's direct testimony under s 379(b)(i) of the Criminal Procedure Act 2009 (Vic). Section 379 makes provision for the admission of the recording of the evidence of a complainant in any appeal from a criminal proceeding that relates to a charge for a sexual offence. Prior to the hearing in the Court of Appeal, the parties were informed that the Court proposed to watch video-recordings of the trial evidence of four witnesses (A, Portelli, Potter and an altar server, Daniel McGlone), and to attend a view of the Cathedral. In response to this information, the applicant submitted that there was no need for