Page:Pell v The Queen.pdf/32

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

respect was of Masses celebrated by the applicant in 1996, since Finnigan last acted as choir marshal on Christmas day of that year. The occasion when McGlone's mother was introduced to the applicant on the Cathedral steps after Sunday solemn Mass was in December 1996, as McGlone did not believe that he continued as an altar server after the end of 1996.

90 The Court of Appeal majority observed that the encounter between McGlone's mother and the applicant was not in doubt but that there was some uncertainty about the date of its occurrence. McGlone was confident that this was the first time the applicant had said Mass in the Cathedral, but their Honours observed that McGlone had been mistaken in his belief that he had not attended the evening Mass celebrated by the applicant on 23 November 1996. Moreover, their Honours said that, accepting the encounter occurred on either 15 or 22 December 1996, it did not make the occurrence of the first incident impossible. It simply ruled out one of those two Sundays as the date of its occurrence.

91 The Court of Appeal majority's treatment of what their Honours rightly identified as the critical issue in the case was wrong for two reasons. First, Portelli's evidence was unchallenged. Secondly, their Honours were required to reason in a manner that is consistent with the way in which a jury would be directed in accordance with the Jury Directions Act 2015 (Vic). Their Honours were required to take into account the forensic disadvantage experienced by the applicant arising from the delay of some 20 years in being confronted by these allegations. Their Honours, however, reasoned to satisfaction of the applicant's guilt by discounting a body of evidence that raised lively doubts as to the commission of the offences because they considered the likelihood that the memories of honest witnesses might have been affected by delay.

92 The Court of Appeal majority acknowledged that there was general consistency and "substantial mutual support", in the account of the opportunity