Page:Pell v The Queen.pdf/8

Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

evidence, adduced in the prosecution case from witnesses described as "the opportunity witnesses", with respect to the applicant's and others' movements following the conclusion of Sunday solemn Mass, which was inconsistent with acceptance of A's account. Their Honours concluded that no witness could say with certainty that the routines and practices described by the opportunity witnesses were never departed from. Their Honours reviewed a number of "solid obstacles" to conviction and in each case concluded that the jury had not been compelled to entertain a doubt as to the applicant's guilt.

6 Weinberg JA, in dissent, considered that, in light of the unchallenged evidence of the opportunity witnesses, "the odds against [A's] account of how the abuse had occurred, would have to be substantial". His Honour concluded that the jury, acting reasonably on the whole of the evidence, ought to have had a reasonable doubt as to the applicant's guilt.

7 The applicant applied for special leave to appeal from the judgment of the Court of Appeal on two grounds. The first proposed ground contends that the Court of Appeal majority erred by finding that their belief in A required the applicant to establish that the offending was impossible in order to raise and leave a doubt. The second proposed ground contends that the Court of Appeal majority erred in their conclusion that the verdicts were not unreasonable as, in light of findings made by their Honours, there remained a reasonable doubt as to the existence of any opportunity for the offending to have occurred.

8 On 13 November 2019, Gordon and Edelman JJ referred the application for special leave to appeal to a Full Court for argument as on an appeal. The application was heard on 11 and 12 March 2020.

Disposition

9 For the reasons to be given, it is evident that there is "a significant possibility that an innocent person has been convicted because the evidence did