Page:Pell v The Queen.pdf/39

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

circumstances including how many people were in the Cathedral". The submission overlooked that, on Mallinson's account, circumstances such as how many people were in the Cathedral would only account for the private prayer time allowed prior to the clearing of the sanctuary varying from 30 seconds to two minutes.

117 The respondent also submitted that "[t]he altar servers would have then left the Sacristy – either for the workers' room, where they disrobed, or for the sanctuary to assist Potter". The submission comes close to repeating the submission which the prosecutor withdrew at the trial. There was no evidence that the altar servers went to their room to disrobe prior to returning to the sanctuary in order to assist in clearing away the sacred vessels and other objects. Nor is there an evidentiary foundation for the conclusion that there was a hiatus between the time when the altar servers completed their bows to the crucifix and the clearing of the sanctuary.

Conclusion

118 It may be accepted that the Court of Appeal majority did not err in holding that A's evidence of the first incident did not contain discrepancies, or display inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt. The likelihood of two choirboys in their gowns being able to slip away from the procession without detection; of finding altar wine in an unlocked cupboard; and of the applicant being able to manoeuvre his vestments to expose his penis are considerations that may be put to one side. It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests' sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests' sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix.

119 Upon the assumption that the jury assessed A's evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.