Page:Pell v The Queen.pdf/22

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

inside the priests' sacristy did not afford any independent basis for finding that, on such an occasion, he had been sexually assaulted by the applicant.

51 Nor did the circumstance that A identified the priests' sacristy as the setting of the first incident afford independent support for acceptance of his account. A said that the applicant "sort of planted himself in the doorway [of the priests' sacristy]" and challenged the two boys before sexually assaulting them. On any view of the matter, acceptance of A's account involves that the applicant was not acting in accord with his regular practice and that he was an opportunistic sexual predator. A's account would be neither more nor less inherently credible if the archbishop's sacristy had been available for the applicant's use at the time.

52 Defence counsel at the trial relied on a counter-argument with respect to the second incident. A placed this incident as having occurred at a point beyond the doors to the priests' sacristy, but before the door to the archbishop's sacristy. Counsel's submission was, in substance, "why would the applicant have walked beyond the priests' sacristy towards the archbishop's sacristy when it was not in use at the time?" Just as A's evidence that the assaults took place in the priests' sacristy does not enhance the credibility of his account, it might be thought that his evidence that the second incident took place past the entry to the priests' sacristy does not detract from it.

53 There is no requirement that a complainant's evidence be corroborated before a jury may return a verdict of guilty upon it. Nonetheless, it was not correct to assess the capacity of A's evidence to support the verdicts on a view that there was independent support for its acceptance. And it was, with respect, beside the point to find that it was open to the jury to view A's knowledge of the priests' sacristy as independent confirmation of him having been inside it.

The applicant's submissions

54 The applicant submitted that, notwithstanding that the Court of Appeal majority correctly stated the standard and burden of proof, their Honours reversed it by asking whether there existed the reasonable possibility that A's account was correct, rather than whether the prosecution had negatived the reasonable possibility that it was not. On the Court of Appeal majority's findings, the applicant submitted, it was evident that the jury, acting rationally, ought to have entertained