Page:Pell v The Queen.pdf/37

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

doors which opened from the south transept into the western end of the sacristy corridor.

109 The Court of Appeal majority concluded that it was "quite possible" for the priests' sacristy to have been unlocked and that A and B might have entered the priests' sacristy after the altar servers had bowed to the crucifix. Their Honours further concluded that it was open to the jury to find that the assaults took place in the five to six minutes of private prayer time, before the "hive of activity" in the priests' sacristy, including the clearing of the sanctuary by the altar servers, commenced.

110 The possibility for which their Honours allowed is not without difficulty. A, a soprano, was close to the front of the procession. If A and B broke away from it and re-entered the Cathedral through the door of the south transept and went through the double doors into the western end of the sacristy corridor, it might reasonably be expected that they would have encountered the altar servers. The altar servers were at the front of the procession. There were at least six of them and there may have been as many as 12. Those in the front of the procession waited for the two servers bookending it at the rear and then they bowed in order to the crucifix. A further oddity is that A and B did not encounter any concelebrant priests in the sacristy corridor or the priests' sacristy, notwithstanding that concelebrant priests would be expected to have gone into the priests' sacristy to disrobe after the procession broke up. It was Finnigan's evidence that there were other priests concelebrating solemn Mass on 15 and 22 December 1996.

111 The principal difficulty with the Court of Appeal majority's analysis is that it elides Potter's estimate of five to six minutes of private prayer time with the estimate of five to six minutes during which A and B re-entered the Cathedral, made their way into the priests' sacristy and were assaulted. The two periods are distinct.

112 The private prayer time commenced shortly after the conclusion of the Mass. Mallinson, the organist and choirmaster, referred to it as an "interval" of