Page:Pell v The Queen.pdf/38

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

"decorum". He was asked when Potter would commence clearing the sanctuary after Mass, and he replied:

""Well, it's difficult to define. Perhaps the clergy having left the sanctuary half a minute, a minute, perhaps a minute and a half, two minutes. It's difficult to say. I mean it depends on the circumstances, how many people are in the cathedral, but fairly soon after the clergy have left the sanctuary.""

113 The procession, of which A and B formed a part, was making its way down the central aisle of the Cathedral during the private prayer time. The procession processed with a degree of formality because it was a religious procession and its members were on display to the public. Assuming that private prayer time occupied five or six minutes, and not the lesser time that Mallinson recalled, it remains that, by the time the altar servers entered the sacristy corridor at the conclusion of the external procession, the private prayer time had been running for some minutes.

114 The Court of Appeal majority's conclusion that it was possible that the assaults occurred after the altar servers had bowed to the crucifix in the priests' sacristy and before they commenced to clear the sanctuary invites the question "where were the altar servers during the five- to six-minute hiatus that their Honours hypothesised?" Although the timing of these events cannot be fixed with any precision, it was, as noted, plainly not the case that the private prayer time given to congregants, before items from the sanctuary were cleared to the priests' sacristy, did not commence until the front of the procession was close to the metal gate.

115 It was not in issue that the altar servers entered the priests' sacristy and bowed to the crucifix at the conclusion of the procession or that they assisted Potter to clear the sanctuary. In closing submissions, the prosecutor invited the jury to find that, after bowing to the crucifix, the altar servers went to the "workers' sacristy" and waited for Potter to give them "the green light" to start clearing up. There was no evidentiary support for that submission and, following objection, the prosecutor withdrew it.

116 In this Court, the respondent maintained that the assaults occurred after the altar servers had entered the priests' sacristy and bowed to the crucifix and before the "hive of activity" in the sacristy commenced. The respondent, relying on Mallinson's evidence, sought to lengthen the private prayer time, submitting that "[p]recisely when this interval would end would, of course, depend on the