Page:Pell v The Queen.pdf/41

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

capacity of the evidence to support the verdict on this charge suffers from the same deficiency as the evidence of the assaults involved in the first incident.

126 Portelli gave unchallenged evidence of his recall of being with the applicant at solemn Mass on 23 February 1997. Portelli recalled that this was an unusual occasion because Father Egan was the celebrant. The protocol remained that the applicant as the most senior person was last as the procession processed down the centre aisle of the Cathedral.

127 The unchallenged evidence of the applicant's invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A's evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant's guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury's advantage, there is a significant possibility that an innocent person has been convicted.

128 This conclusion makes it unnecessary to consider whether the respondent's concession, that if the verdicts in relation to the offences charged in the first incident are unreasonable or cannot be supported by the evidence then it follows that the same conclusion should be reached in relation to the verdict concerning the offence charged in the second incident, amounts to a mode of reasoning that contravenes ss 44F and 44G of the Jury Directions Act.

Orders

129 For these reasons, there should be the following orders:

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and allowed.

3. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 21 August 2019 and, in its place, order that:


 * (a) the appeal be allowed; and