Page:Pell v The Queen.pdf/40

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

The second incident

120 It will be recalled that the second incident is alleged to have occurred after Sunday solemn Mass on an occasion on which there was an internal procession through the sacristy corridor. A agreed that he, as one of the younger boys, would have been towards the front of the procession as it made its way through the sacristy corridor, with the older choristers, including some adults, behind him. They were all rushing to get back to the choir's robing room when the second incident occurred. The applicant appeared and shoved A against the wall and squeezed his genitals, causing pain, although he did not know if he had called out.

121 The defence contended at trial that the notion that the applicant – a tall, imposing figure in his archbishop's robes – might assault a young choirboy in the presence of a number of choristers, including several adults, bordered on the fanciful.

122 The Court of Appeal majority accepted that the sight of the applicant at close quarters with a choirboy might well have attracted attention. However, their Honours reasoned that the others in the corridor were intent on completing the procession and removing their robes as soon as possible. In this state of affairs, their Honours assessed that it was quite possible that the brief encounter went unnoticed. At all events, their Honours said, "the evidence once again falls well short of establishing impossibility".

123 Weinberg JA considered that, had the second incident occurred in the way A described it, it was highly unlikely that none of the many persons present would have seen what was happening or reported it in some way. His Honour concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the offence charged in the second incident.

124 The assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed "in his full regalia" advancing through the procession and pinning a 13 year old boy to the wall, is a large one. The failure to make any formal report of such an incident, had it occurred, may be another matter.

125 It is unnecessary to decide whether A's description of the second incident so strains credulity as to necessitate that the jury, who saw and heard him give the evidence, ought to have entertained a reasonable doubt as to its occurrence. The