Pell v The Queen [2020] HCATrans 27 (12 March 2020)

Pell v The Queen [2020] HCATrans 27 (12 March 2020)

Last Updated: 12 March 2020

[2020] HCATrans 027





IN THE HIGH COURT OF AUSTRALIA











Office of the Registry



Melbourne No M112 of 2019

B e t w e e n -

GEORGE PELL

Applicant

and

THE QUEEN

Respondent





KIEFEL CJ



BELL J



GAGELER J



KEANE J



NETTLE J



GORDON J



EDELMAN J







TRANSCRIPT OF PROCEEDINGS







AT CANBERRA ON THURSDAY, 12 MARCH 2020, AT 10.00 AM







(Continued from 11/3/20)







Copyright in the High Court of Australia



KIEFEL CJ: Yes, Ms Judd.







MS JUDD: Thank you, your Honour. I thought I would start by dealing with the issue of the viewing of the recorded evidence, given that there were questions raised about that early on yesterday. Now, in that context it was suggested by Mr Walker yesterday that the Court of Appeal ought not to have considered credibility issues. The difficulty with that submission and the difficulty that the Court of Appeal faced was that credibility issues were up front and centre both in the written submissions and the oral submissions before the Court of Appeal.







If I could take you to the parties’ further materials book which was put together essentially to address this particular issue, at page 16, paragraph 26, it was submitted by the applicant before the Court of Appeal in writing that, in addition, A’s:





account was not simply implausible, he also changed it repeatedly in critical ways, when he was presented with facts which exposed its impossibility. At best, these repeated alterations revealed him to be uncertain and unreliable about critical particulars of his own narrative. At worst, he demonstrated a tendency to deliberately alter crucial elements of his story on numerous occasions when confronted by solid obstacles. These repeated attempts to make two factually impossible allegations marginally more realistic ultimately failed.







So by directly putting in this tendency to deliberately alter crucial elements of his story, what the applicant was doing before the Court of Appeal was putting in the issue of credibility as something that they were asking the Court of Appeal to look at.







NETTLE J: On the basis of the evidence; not on the basis of looking at videos.







MS JUDD: No, but yesterday there was – first of all, the videos do form part of the evidence. They in fact are the primary evidence over and above the transcript.







NETTLE J: The only point of looking at which would be to make an assessment of demeanour of the witness, which is the function of the jury.







MS JUDD: Yes, it is, and what we say is that it is a function of the jury and we put that pretty heavily in there, but perhaps to answer Justice Nettle’s point I will jump quickly to Chidiac. I do want to come back to a little bit more about the way in which it was put and why it was that it was proper for the Court of Appeal to look at the video. But can I jump to Chidiac. So, if I could take the Court to the joint book of authorities, at page 71 is Chidiac v The Queen [1991] HCA 4; (1990) 171 CLR 432. And if I could jump over to – it is really 82 and 83.







BELL J: What page in the report is that, Ms Judd?







MS JUDD: In the report it is page 444.







BELL J: Thank you.







MS JUDD: So if you go to point 20 on that page, there is a recognition that:





In resolving that question –







i.e. the question of whether there is an unreasonable verdict:





the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility. Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused’s guilt to the required degree. Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe. When that happens the court is not substituting its view of credibility for that of the jury; the court is giving effect to its conclusion that, notwithstanding the jury’s apparent willingness to accept the particular witness or witnesses as credible, the evidence was, having regard to its nature and quality, insufficient to satisfy a reasonable jury of the accused’s guilt according to the criminal standard of proof.







BELL J: When one looks at the words there, having regard to its nature and quality, is not the court making the point that while it is a matter for the jury to assess credibility based on the demeanour of the witness, there may be occasions where the witness’ evidence contains such inconsistencies or improbabilities or something of that character that one can say of that evidence its nature and quality is incapable of supporting a conclusion of guilt to the criminal standard?







MS JUDD: Yes, they are, and they are mixing there both credibility and reliability. They are not just talking about credibility. They say issues of credibility and reliability. They do use the same words that are used in relation to the admissibility of evidence stage. So if you look at, for example, R v Bauer (2018) 92 ALJR 864 at 69 - we have not provided that - it is similar wording, whether it is so unreasonable.







Our main point ‑ and I will come to this in the submissions when I take you to our points on assessing the reliability and credibility and the different approaches that each judge took ‑ that it really ought to be, in this case, a matter for the jury and that particularly when you have got differences between what the majority thought and the dissenting judge thought, it shows that there are quite a range of options open in terms of how you might assess both the complainant and other witnesses. And so therefore when you get to answer the question, was it open to the jury to act on the basis of the credibility and reliability in conjunction with the other evidence, we say primacy ought to have been given and was given by the majority, appropriately, to the jury’s assessment.







EDELMAN J: Was the video record of the complainant’s evidence tendered as an exhibit?







MS JUDD: It was tendered and marked for identification, and the reason that was done in that manner was that the judge, the trial judge, did not want to elevate it to something beyond the other evidence. So wanted the jury to look at that in the same way that they would look at any other evidence, but it was tendered and marked for identification for that reason.







BELL J: When you say “tendered and marked for identification”, it did not become an exhibit?







MS JUDD: It was played to the jury ‑ ‑ ‑







EDELMAN J: At one point it is described as exhibit MFI‑G.







NETTLE J: That is marked for identification.







MS JUDD: Marked for identification G.







EDELMAN J: But described also as an exhibit.







MS JUDD: Yes, so it was given an exhibit number so that it could ‑ ‑ ‑







GORDON J: But its status is marked for identification?







MS JUDD: Status was marked for identification ‑ ‑ ‑







GORDON J: So it was not a formal exhibit as part of the court record?







MS JUDD: It was part of the court record, as was a number of the recordings, because what had happened, there had been a first trial ‑ ‑ ‑







GORDON J: No, I know there had been a first trial, we are trying to work out what is the status of the video; is it an exhibit, that is a tendered exhibit, or is it something marked for identification in the course of a trial so that people can track if something goes on appeal.







MS JUDD: It is something marked for identification.







KIEFEL CJ: Well, that means it is not accepted into evidence; it is not therefore evidence. “Marked for identification” is the preliminary to consideration of acceptance of evidence.







MS JUDD: Yes, but what happened was it got played to - that very transcript and that video was actually played to the jury on the second trial because the complainant, as with a number of other witnesses ‑ ‑ ‑







GORDON J: But that just means that what was shown to them was, instead of the complainant going into the witness box, they were shown the video and that was to be treated as if the person had gone into the witness box and given evidence.







MS JUDD: Correct, yes.







GORDON J: So what is evidence is what they saw, which happened to be recorded in a transcript and the transcript became part of the record.







MS JUDD: Well, so did the – it became part of the record in the sense of all of the other evidence, and the jury are actually told in the directions the evidence is what is said in court. You get the transcript to aid you, but it is what the evidence is in court. So it was given – and it was made clear that it was to be given that same status.







NETTLE J: Whilst it was admissible under section 379, the judge did not receive it, apparently for the reason ‑ ‑ ‑







MS JUDD: He did receive it because it became admissible in that it got played to the jury. So if it was not admissible it could never have been played to the jury, for them to have it considered. The reason for that particular provision is to enable the playing of the recorded evidence in one trial in another trial. If it was not made admissible it should never even have been played, and it was played. So it became admissible in that sense. There was a practical sense to the way the judge did that because the judge did not want the complainant’s evidence to be elevated to something beyond how the other evidence was to be treated.







BELL J: Ms Judd, in SKA v The Queen the Court rejected a challenge to the Court of Criminal Appeal of New South Wales’ decision not to view the video recording of a complainant’s evidence. This Court said, in essence, there was no forensic requirement for the intermediate appellate court to do so.







MS JUDD: Could I just find SKA.







BELL J: By all means.







MS JUDD: Yes, I have that.







BELL J: SKA [2011] HCA 13; 243 CLR 400. The matter that I am raising with you is here the Court of Appeal, of its own motion, as I understand it, invited the parties to comment on its intention to view the video of the complainant’s evidence, and the applicant objected to that course. As I understand your submission, the forensic reason that the Court of Appeal had in mind was that the parties’ submissions raised issues of mixed credibility and reliability, and it was in that context that the Court of Appeal determined to look at the video recording. Is that so?







MS JUDD: The reason I raised credibility upfront was that there was a discussion yesterday that seemed to go along the lines of if credibility was not in issue or ought not to have been in issue, then that lessened the need for there being a purpose behind looking at it.







BELL J: I think, Ms Judd, the argument yesterday was posited on the suggestion that one must approach a challenge such as this upon an acceptance that the jury found the complainant’s evidence credible and they were satisfied of both the credibility and reliability of the evidence beyond reasonable doubt. Upon that acceptance the task of the intermediate court is to review whether, acting rationally, notwithstanding the belief in the credibility of the witness, the jury ought have entertained a doubt because of evident inconsistencies or implausibility concerning the witness’ evidence or because of other evidence.







MS JUDD: I took it as higher in that, if you look at paragraph 26 and the other paragraphs I will be coming to, credibility was directly put in issue in terms of something that the Court of Appeal were asked to look at.







NETTLE J: Ms Judd, that is correct, undoubtedly so. There was an attack made on the witness’ credibility by reference to the inconsistencies in his evidence and his propensity to change his evidence when put under pressure, but it was not suggested that that was to be assessed by looking at the video to determine the demeanour of the witness. It was contended that it was to be assessed by looking at the record of his evidence as recorded and making an assessment accordingly.







MS JUDD: Yes, that was the applicant’s contention. Dealing with ‑ ‑ ‑







NETTLE J: That was surely correct, was it not? That is the way one goes about it as an appellate court.







MS JUDD: I do not accept that and I just need to take you through a few steps. I am not trying to deliberately avoid that question and I hope by the time I go through these steps I will get there.







NETTLE J: Very well.







MS JUDD: So combining what you, Justice Bell, have asked me and what Justice Nettle has asked me, SKA was not about - and the ruling was not about the threshold that needed to be met for viewing evidence. What was being considered there was a question of whether the court was in error in declining to view for itself the video. So it is the other way around, but it does not prescribe the situations that must be met before the Court of Appeal can look at the other material.







KIEFEL CJ: But it says, does it not, that there needs to be an issue and a forensic reason for an intermediate appellate court to take on this task for itself.







MS JUDD: To be required to take on the task.







KIEFEL CJ: Yes.







MS JUDD: It is a subtle difference.







GORDON J: It is not a subtle difference, is it? The reason why it poses this requirement for a forensic reason is because it is reflecting, is it not, the distinction in function between the jury and the appellate court, which is the point raised by Justice Nettle. Ideas about demeanour ‑ ‑ ‑







MS JUDD: Yes, but that is the first step. Then we go to the way the issues unfolded in this case.







GORDON J: It raises squarely again accepting, as you identify, that they sought to challenge the credibility and reliability of A’s evidence. What was the forensic reason that was necessary to look to the video when none was identified by the majority of the Court of Appeal or by Justice Weinberg, for that matter, consistent with acknowledgement of this distinction in function? We accept there is a coincidence, but there is a distinction.







MS JUDD: There is most definitely a distinction in function, but one of the arguments that was put was that in cross‑examination A repeatedly – perhaps if I take you to, for example, paragraph 68. So if I could take you to the core appeal book at page 200, paragraph 68. So there, there is a reference to the contention of falsity. There were:





two alternative hypotheses. The first was that A was a cunning and calculating liar, who had realised after being cross‑examined at the committal that he had gaps to fill in his story and who then set about inventing additional pieces of evidence to fill those gaps. As was properly conceded by senior counsel for Cardinal Pell in this Court, this was a contention of deliberate and purposeful fabrication.







All of that is relevant, but going over to 72:





In advancing the fabrication hypotheses, senior counsel for Cardinal Pell repeatedly put to A in cross‑examination at trial that he had realised, after being cross‑examined at committal, that there were difficulties in his story which he would have to fix up. It was for this reason, counsel suggested, that A had ‘concocted’ or ‘invented’ new pieces of evidence.







And then they examine that, also, in detail at 197 to 231.







GORDON J: Sorry, before you leave that, are you going to come back to 73?







MS JUDD: No, I can deal with that now:





It is sufficient for present purposes to say that we saw nothing in A’s answers under cross‑examination to suggest that he had been caught out or had tripped himself up. And, where his responses involved any alteration ‑ ‑ ‑







GORDON J: I do not think we need to read it, we understand it. The point is, why was that necessary, given the acceptance that there is a distinction in function, that they had to look at the video in assessing what had been set out between 68 and 72? What is the forensic exercise that is needed to be undertaken?







MS JUDD: Because the manner in which a witness may answer those very specific questions under attack can be something that is relevant to an assessment of that witness.







NETTLE J: Do you mean demeanour?







MS JUDD: If you are pausing, if you are hesitating ‑ ‑ ‑







NETTLE J: Do you mean demeanour? The witness’ demeanour as depicted in the film of his giving evidence.







MS JUDD: Yes. Now, certainly not too much weight ought be placed on demeanour, and the Court of Appeal were conscious of that, and the Court of Appeal ought not be watching this over and over again, as I think it was the Chief Justice said, but there is ‑ they say ‑ they only watched it twice. I will find that.







NETTLE J: Once, indeed, before they read the transcript, as it was proclaimed.







MS JUDD: Yes, that is at paragraph 90, I think. But they did not watch it over and over. And using the word, in paragraph 73, that we saw nothing in A’s answers under cross‑examination, does not mean that that is necessarily coming from watching it, it is also what they see or they ascertain from reading the transcript. And when they go through, in quite a lot of detail, the majority do set out, in quite some detail, the transcript and they focus very much on that written transcript.







BELL J: Ms Judd, at a point in the closing address of the Crown Prosecutor, he invited the jury to remember two occasions when the complainant had been asked a question by defence counsel and the complainant had paused and he closed his eyes before responding, in the Crown Prosecutor’s submission, one of those indications of a witness truthfully trying to reflect back and remember the subject matter that his attention was directed to.







Now, the matter I am going to raise with you, Ms Judd, is this. It may be that watching and seeing the complainant close his eyes and think back impressed members of the jury as an evident sign of truthfulness. It may be that some people might look at that and say, “He’s giving himself time to think up an answer”. My point is it is such a subjective consideration that it is very difficult to see how the appellate court properly performing its function in accordance with the M test, can be assisted by its own subjective views about matters of that character.







MS JUDD: Yes, but then we get to the real question about all of this, is that whether engaging in that viewing they have actually – and it can be demonstrated that they have improperly engaged in the assessment of the whole of the evidence, and that is the question that completes part of this cycle.







EDELMAN J: I suppose the Court of Appeal found itself in a position where this Court has repeatedly, both in the context of the proviso and in the context of the M test, said that intermediate appellate courts must consider the whole of the record, and on one view the video was part of the record, and where there are submissions that demeanour needed to be taken into account and a forensic contest about that, the Court of Appeal takes the decision to watch the video.







MS JUDD: Indeed, yes, and I would adopt that much ‑ ‑ ‑







NETTLE J: Was it contended that demeanour needed to be taken into account, or was it contended that when one had regard to the answers given and not given, it was apparent that there was reason to doubt the credibility and reliability of the witness?







MS JUDD: In terms of the way the majority interpreted what their task was based on the submissions - I do not have all of the oral submissions to take you to. It starts at 199 of the core appeal book and it really is the material from paragraph 65 through to 73.







NETTLE J: Just before you go there, one really does need to start, I think, at page 188, paragraphs 30 through to 33, which appears to be a statement of intention to avail themselves of the new technology of video recording in order to put themselves as closely as possible in the position of the jury.







MS JUDD: That is true, and so that is doing exactly what Justice Edelman was pointing out, as looking at the whole of the evidence.







NETTLE J: In order to assess the demeanour of the witness?







MS JUDD: Well, the demeanour is just one part of assessing both credibility and reliability of the complainant.







NETTLE J: Surely it is the only part that one can get from the film that cannot be got from the transcript?







MS JUDD: That may be right. Not, for example, when it came to viewing the evidence of Portelli, because Portelli actually did a demonstration of the robe. I mean, there are other examples ‑ ‑ ‑







GORDON J: Can we just stick with the complainant’s evidence because if you take what Justice Nettle just put to you in relation to paragraphs 33 to 36, if one then goes to the conclusion of the majority’s reasons on this section, which starts at core appeal book 207, paragraphs 90 through to 94, one sees especially at 94 that the impression they gained from reading and watching the video twice, that he came across as someone telling the truth, not seeking to embellish or tailor, and the first impression was constantly critically re‑evaluated.







So you have this approach which is directed at – really raises two issues: Is it appropriate for them to have viewed the video, what is the forensic reason for doing so, and, second, this idea of a distinction between function of jury and appellate court.







MS JUDD: I am not for a moment suggesting, with respect to the complainant, that it was necessary to look at the video or the recording for a purpose over and above demeanour. What I am submitting is that once credibility and reliability and the way in which the complainant answered his questions, including these allegations of deliberately changing his answers to meet what is put to him, and, indeed, the very passage that Justice Bell read out about taking his time to consider his answers and so forth, once that is in issue, demeanour is a relevant consideration.







I mean, our ultimate submission is that really there should be a recognition, as was said by Chief Justice Mason in Chidiac, that reliability and credibility are primarily and essentially matters for the jury. But once it is put in in such strong terms in the Court of Appeal, demeanour does go into the mix. The question then becomes not whether or not they looked at demeanour, not whether or not they considered demeanour, but whether or not they were unduly influenced by demeanour.







EDELMAN J: Was demeanour ever relied upon by the Crown in a positive way, rather than a negative way?







MS JUDD: Yes.







EDELMAN J: In other words, was it relied upon to say this is not merely a case where the jury accepted the credibility and reliability of the complainant’s evidence, but a case where that credibility and reliability was so strong or so powerful that if you watch the video it overcomes other obstacles?







MS JUDD: Not that if you watch the video it overcomes other obstacles; it certainly was put that the complainant was a very ‑ ‑ ‑







GORDON J: Compelling was the word.







MS JUDD: ‑ ‑ ‑ compelling witness.







EDELMAN J: It was never said that ‑ it was never suggested that the Court of Appeal needed to watch the video in order to satisfy itself of that degree of ‑ ‑ ‑







MS JUDD: Not at all, not at all. Indeed, it was the court that raised the viewing of the material. It was not the Crown that asked the court to look at that material, it was the court – the chronology was that the court said that they were going to look at the evidence of the complainant, Portelli, Potter and McGlone, and asked the parties whether they had any objections.







Now, the Crown did not have an objection – they were also asking to address the court on whether to live – whether we had any objections to live streaming and we had quite a lot of objections to live streaming. But most of our submissions on that point were really taken up with the live streaming, we simply said we did not object. But it was not the Crown’s idea and it was not the Crown advancing the point that demeanour was the important consideration.







KEANE J: So that in terms of SKA the situation was that neither party identified to the court a forensic reason why this course should be taken. Insofar as you are now trying to justify the course that was taken, it is not the case that the Crown thought that it was necessary for the proper presentation of the Crown’s case, and the Crown’s arguments on appeal, that the video recording should be viewed. Is that right?







MS JUDD: It was not the Crown’s arguments that led to the Court of Appeal seeking to view that. But what I do say is that they ‑ at that point they did have the written submissions, which put into play issues that the Court of Appeal may well have been justified in thinking that they might be assisted by the manner in which the evidence was given as well and that is what SKA talks about. So it is not just about credibility or reliability, it is about the manner. I am primarily – I do not really want to get to a point where intermediary appellate courts feel obliged to always look at the material but if their task can be assisted in some way by it then it is ‑ ‑ ‑







KEANE J: Insofar as you accept that their task is not to attempt to duplicate the function of the jury, then at least as a starting point where no particular forensic reason is identified for the court to view the video evidence, is not the starting point that the mere attempt to duplicate the function of the jury is not a sufficient reason to view the video evidence.







MS JUDD: Yes, I agree with that. That is the starting point.







KEANE J: So that insofar as that is what the court set out to do – that is to say, put themselves in the position of the jury ‑ that was something that was not necessary to the proper discharge of their duty.







MS JUDD: It can be justified, as Justice Edelman said: if they do not look at the whole of the evidence and the whole of the record then ‑ there have been criticisms. But here, although you have got that as the starting point, it does not have to be either the Crown or the defence saying, “Look at that material for that purpose”. Now, if the Crown or defence want the court to look at it then, ordinarily, they would have to have arguments to justify the court doing it and that is what SKA is about.







But if the court, in looking at that material and knowing that credibility and reliability are such big things in this case, if they form the opinion that their task in applying the M test – not in replicating the task of the jury but applying the M test as to whether or not it was open to the jury to accept the complainant as a credible and reliable witness, it is still relevant for them to look at other material that the jury had because whether or not it is open to the jury to reach that conclusion ‑ ‑ ‑







KIEFEL CJ: Do you accept that the test in M v The Queen did not require the Court of Appeal to look at the video?







MS JUDD: I accept that there is nothing either in M or in any other case that required the court to look at the material.







KIEFEL CJ: That is not what is meant by the reference to “the whole of the evidence” – “the whole of the evidence” can be taken from the transcript.







MS JUDD: Yes. So there is nothing that requires it.







KIEFEL CJ: SKA is the only case that deals with the particular issue of video evidence because it has issues such as demeanour attached to it.







MS JUDD: Correct.







KIEFEL CJ: So we should not confuse the test in M and what is said in SKA because they are really talking about different things, are they not?







MS JUDD: They are; I agree with that. But in accepting that there is nothing M that required or necessitated the Court of Appeal to go down that path, I do not accept that it was not open to them to go down that path if there was something ‑ ‑ ‑







KIEFEL CJ: Well, then, you are in the territory of SKA and it is either answered by SKA or it is not. Is that not it?







MS JUDD: Well, SKA specifically was talking about whether they were obliged to. I am talking about whether they were entitled to versus whether it is an error for them not to go down that path. That is why I get back to when we are looking at an error of the Court of Appeal; if there is going to be established an error, it is not simply the viewing of the material, in my submission, it is whether or not they placed too much weight on the demeanour in their overall assessment or whether there was something about the viewing of the evidence that meant that they did not carry out an otherwise proper assessment.







KIEFEL CJ: The difficulty with that is, as Justice Bell has pointed out, that the assessment of a witness by video evidence and of demeanour is so subjective that it is very difficult to say how it has affected an intermediate appellate court judge in what they think about the transcript when they come to read it, and that is one of the points about whether or not one interprets SKA as saying, you really should not do it, unless there is a forensic reason to do it.







MS JUDD: Yes, I understand that. Here, I submit that when you look at the way in which they put their reasons together they were very, very conscious of not placing too much weight on demeanour and the fact that they ‑ ‑ ‑







KIEFEL CJ: So where does the adjective “compelling” come from when they describe the impression left of the evidence of the complainant as compelling?







MS JUDD: But they are still linking it to what was open to ‑ ‑ ‑







KIEFEL CJ: But to what extent is this Court to determine the extent to which the Court of Appeal was influenced by the video? How do we approach it, Ms Judd?







MS JUDD: Paragraphs 93 and 94 ‑ ‑ ‑







GORDON J: Paragraph 87, they accept that A’s evidence:





was rightly characterised as compelling -





and then in 90 they uphold the contention that it is compelling, having viewed the evidence twice, and then in 94 describe him as “entirely authentic.”







MS JUDD: Yes. Demeanour is not something that the Court of Appeal are prevented from looking at and considering. They still have to bear in mind the ultimate test as to whether or not it was open to the jury to get down that path and the essence of what they really conclude on this ‑ yes, they do in paragraph 87 accept what had been advanced by the Crown but then they go over to their ultimate conclusion which really 93 and 94 demonstrate that they are very aware that – sorry, I should go back, I think.







KIEFEL CJ: Well, in 94 their Honours make the point that it was not just the content of what he said, it was the way in which he said it, which:





appeared to us to be entirely authentic.







MS JUDD: Yes, but that was in light of the defence submission about him concocting or embellishing or fantasising.







NETTLE J: Yes, but that was based on the fact that to begin with he had no recollection of where he broke off from the procession and later under cross‑examination it moved a couple of times until it settled at the gate. Originally he had not recollection of where he went after and his first recollection was being in the car. After a while that changed in cross‑examination to him having gone back no longer than 10 to 15 minutes late to the jury room and so on. They were the things that Mr Richter identified at trial and which were identified in the Court of Appeal, not his demeanour or the emotion which he conveyed, as the Court of Appeal ‑ ‑ ‑







MS JUDD: The majority in 93 in particular – earlier they said not too much weight ought be given to demeanour. I can find that paragraph if I need to, but in 93 they are talking about the account of the events. The account comes from the transcript as well as the recording. The unfolding comes from both, and they recognise there, very, very importantly for this appeal, and for this point, that:





A’s evidence could not be considered in isolation. Any first impression of him ‑







and whether that is a first impression by reason of reading the transcript or watching him ‑





had to be constantly, and critically, re‑evaluated in the light of the opportunity evidence.







So they are very clearly saying, okay, we have looked at this, they acknowledge that, but they are not saying we are going to be overly influenced by his account either in the written form or in the viewing.







KIEFEL CJ: Are you dealing with this, Ms Judd, as part of your outline, paragraph 2, the independent assessment, or is it a preliminary matter?







MS JUDD: I was not. I have some other preliminary ‑ I was trying to deal with quite a number of the questions from yesterday and then I will start.







KIEFEL CJ: I understand.







MS JUDD: So it has taken me a bit of time, but in fairness, I thought it might have been a little bit quicker.







GORDON J: This is really paragraph 10 of your outline, is it not, this “no error of law” point - or at least part of the argument?







MS JUDD: Part of it and some of what I have said now will mean that I will be quicker on some of the other points. But I do have quite a lot to go through. Another question that was ‑ ‑ ‑







KIEFEL CJ: Yes, the video question is not the whole of this appeal.







MS JUDD: No, no. Just very, very briefly - and this does deal with another point, the point about - I was asked, or Mr Walker was asked a question about the robes and without taking you to it, the Court of Appeal transcript, we can get it to you if it is important, it is just it did come up as a question yesterday, at 242 to 243 was the discussion about the court having the robes, and so forth, at 246 it was recognised that it was an exhibit, but I can probably, without going to the detail of that, just jump very quickly to 145 and 256 of the majority’s reasons. So 144 talks about it, 145:





In response, senior counsel for the Crown invited the members of the Court to try on the robes. They were an exhibit at the trial and, we were told, had been available to the jury in the jury room during their deliberation. Counsel for Cardinal Pell did not demur.







Then at 256 ‑ ‑ ‑







GORDON J: Paragraph 246 or 256?







MS JUDD: Paragraph 256. That is 266 of the core appeal book, the last sentence there:





As we have said, our own observation of the robes revealed Portelli’s categorical assertion of physical impossibility to be unsustainable.







But what was, I suppose, the important thing about the robes is that it essentially did not become an issue about whether this could physically be done. The real issue about the robes became the credibility and reliability point. Justice Weinberg notes that at 823. I wrote this down just before I came in but I cannot find it at the moment – the majority also essentially acknowledged that that became - the real issue about the robes became a credibility point and a reliability point – yes, 205 to 206.







BELL J: Save, I think, that the Court of Appeal majority concluded from putting on the robes themselves or whatever it was that they did, that Monsignor Portelli’s evidence was plainly wrong on that topic.







MS JUDD: But also viewing - those bits that I did not take you to were a reference to actually viewing Portelli in his evidence, so if you look at – I think it is in the respondent’s further material at 531. Yes, 531, there is the evidence where Portelli actually does a demonstration, so it is not solely based on that and that discussion – I will take you to that. There was a discussion at 243 ‑ ‑ ‑







GORDON J: At 243 of what, Ms Judd?







MS JUDD: ‑ ‑ ‑ which you do not have. I did not realise this was going to be such a big point, but a discussion before the Court of Appeal about a reference to seeing Monsignor Portelli actually putting the robes on.







Now, there was another early question or comment by the Chief Justice about the division between Part I and Part II of the majority’s judgment. I just want to make it clear what they were doing in Part I and Part II, or what they said they were doing.







Part I was the way they approached the evidence as a whole and they were assessing the complainant’s credibility and reliability, that they were acknowledging, as you go through, all of the opportunity evidence and saying that that needed to be taken into account, and they did take that into account in Part I. So they were not ignoring that, for Part I. That was their whole of evidence analysis.







KIEFEL CJ: Just to be clear, are you saying that their Honours came to a preliminary view about the complainant’s evidence and credibility?







MS JUDD: No, no. I am saying they dealt with that in its entirety in Part I, but they did not leave out the opportunity evidence.







KIEFEL CJ: No, I understand what you are saying there. But in the first place, they considered his credibility and the impression he conveyed, and what his evidence said to them, and then they went to the opportunity evidence and looked at each aspect of it to see how it weighed against their preliminary view. Is that how you say it was done?







MS JUDD: No, no. In terms of describing it, they start with describing the complainant’s evidence. They have got to start somewhere in terms of the way they describe it. And, in fact, Justice Weinberg did exactly the same thing. He said the starting point is the complainant’s credibility and reliability. But what I am saying is, and they make it clear, that when they are assessing the complainant’s credibility and reliability, they do that assessment with reference to a whole lot of considerations, and the opportunity evidence was one of that.







So they are not eliminating the opportunity evidence in that Part I. What Part II is about is dealing with the – and they reach a conclusion on that and they say on the whole of the evidence, it was open to accept that this happened as the complainant described. They also looked at the supporting evidence, which I want to come to in a bit of detail, which we say enhances the reliability.







But Part II, they were dealing in detail with the very specific submissions that were made in the Court of Appeal. And, yes, they could not ignore the opportunity evidence in Part I, for the purposes of whether on the whole of the evidence, the M test was satisfied. But they also had to deal with the very strong contention that this offending was impossible, because if it was impossible, that ends the appeal. You do not need to worry about how credible, how reliable, whatever it is ‑ ‑ ‑







BELL J: Ms Judd, if the opportunity evidence left open the reasonable possibility that the offence could not occur, the appeal was all over too, and that is, in essence, as I understand the applicant’s argument. The court became distracted by the sort of flourish that defence counsel commonly might employ in an address to the jury, perhaps to the forensic disadvantage of the applicant, pitching the test too high. Impossibility was never the issue, elimination of the reasonable possibility of the existence of an alibi or other circumstance that left a doubt.







MS JUDD: Yes, I understand that, but the evidence never got that high, and the majority were well aware of that argument and dealt with that argument. Now, it has been put yesterday – and this is another point that I am just going to have go through in quite a bit of detail, but it was open to the jury, we say, and the Court of Appeal, to conclude that the opportunity evidence did not get any higher than there being a practice and a practice that was not strictly adhered to. That was open on the basis of Portelli, which I can take you to straight away, but it was also open on the basis of a series of other witnesses that I am going to take you to later, through ‑ in a bit of detail ‑ that said they saw Pell in that timeframe when he would have otherwise been standing on the steps; they saw him in a different location.







GORDON J: On those particular days?







MS JUDD: The first – no, but Portelli, when you go through the evidence of Portelli, Portelli, we say, never gets as high as acknowledging that – Portelli essentially does not have a recollection about those two days.







NETTLE J: Well, he said he was with Pell on both the occasions, 15 December and 22 December?







MS JUDD: All right. I need to take you to this in quite a bit of detail. If we can start, though, with section 38 – the section 38 ruling. This is the applicant’s further material at 32. Now, the ruling did not start here, but what I want to take you to is on that page. Look at the second bullet point halfway down ‑ ‑ ‑







BELL J: Which page is this? I am sorry.







MS JUDD: This is the applicant’s further material at page 32.







BELL J: Thank you.







EDELMAN J: This is paragraph 129?







MS JUDD: This is paragraph 129, yes. Now, there is a second bullet point there, and before we get to that bullet point, the issue to do with Portelli and the other opportunity witnesses or alibi witnesses, if you use that, was – I am just sticking to Portelli perhaps for the example. The Crown sought to cross‑examine and get an advance ruling to cross‑examine on questions dealing with reliability. The Crown did not have enough to go in and – there has got to be a basis for a 38 ruling. And the basis for the 38 ruling, as it was sought and as it was granted, was, as halfway down that page:





to test and challenge any categorical and unqualified assertions which effectively allow for no realistic possibility of departure from a practice, which in turn excludes any possibility of opportunity for the offending conduct to have taken place.





So that is the grant of leave. So the criticism about not going in and going harder needs to be firmly kept in mind that that is the context.







BELL J: The context was, was it not, that if the Crown were not able to challenge the witnesses whom it, as a matter of fairness, proposed calling on matters that included the meet and greet outside the western door of the cathedral and other matters, it would not be able to exclude evidence inconsistent with the commission of the offence?







MS JUDD: Yes, and what the Crown were saying – and I think this is terminology picked up in Palmer, and I am going to come back to dealing with Justice Nettle’s point – in Palmer and I can find the passage, there is a reference where they talk about it being mutually incompatible. So there being an alibi is mutually incompatible with the offending having taken place. The Crown case was always and remains today that there was nothing mutually incompatible about that evidence and the offending having taken place and that is why I want to now take you to Monsignor Portelli’s evidence, because it never got as high as being mutually incompatible.







BELL J: Is that a submission that the evidence failed to establish that Monsignor Portelli’s evidence of the applicant’s practice of standing outside and greeting practitioners for 10 or 20 minutes – or whatever the time was – may not on an occasion or occasions have been followed? That is the point, is it not?







MS JUDD: No, there are a number of points. The first point is that when you read Monsignor Portelli’s evidence as a whole – and I will take you to it, I promise – his evidence cannot be relied on to – and Portelli is the main one because he is the one that was with him. Although Potter may have been with him at different times, mainly he was in the sanctuary and would not have necessarily been seen – you know, could see what was happening, and Portelli is the key.







The first point is Portelli’s evidence cannot be relied on to say that he remembered those particular dates, and I am going to take you to that. Yes, he agreed with puttage in cross‑examination about the dates, but in examination in‑chief he actually said that he did not remember a whole lot of things about those two days. He could not remember whether there was an external or internal procession. He could not remember the mass on that day.







When Mr Gibson was asking him questions in examination‑in‑chief, he actually confined himself to practices. Mr Gibson says, as opposed to having a specific recollection of those two dates, he confines himself to a practice. He then in cross‑examination agrees with the two dates and then we get to re‑examination where he cannot answer the questions with reference to specific dates because he did not have the list in front of him. That is the first point about him; it is only the first point.







BELL J: Let it be accepted that after 22 years a witness whose honesty was not in contention gave evidence, the effect of which was “When the applicant became Archbishop he adopted a practice of greeting parishioners on the steps of the western door of the cathedral. I believe that he adopted that practice on the first occasion because that was an occasion that was memorable - it was my first occasion as his master of ceremonies and my recollection generally is that he adopted that practice invariably. Sometimes it might have been a little bit shorter if he had an engagement that afternoon”.







If that was the overall effect of his evidence it did not exclude the possibility that the offence could have occurred, but why did it not raise a reasonable doubt as to the commission of the offence since it seems to be accepted that if the applicant was on the steps of the western door for 10 minutes or so the offence could not have occurred in the way described?







MS JUDD: Because if he does not have a specific alibi, if he does not have a specific recollection of that date, it gets down to practices. So there needs to be an analysis of what he says about what the practice was, including the timing and including the concessions he makes. Also, it is necessary to not look at Monsignor Portelli’s evidence in isolation because there are quite a number of the choirboys and others who actually do say that there were occasions when he did not process for the external - a number of occasions he did not stand on the steps but he actually processed and the choirboys recall having to wait for him to go through.







There is also some evidence, different evidence about where he would go through, whether it be at that Knox Centre door or whether it be at the south transept door. You also have evidence from choirboys saying that they saw him in the choir room immediately after mass or pretty soon after mass when they were all there, bearing in mind that they go back there.







So if he is standing on those steps for a long period of time, he is not going to be able to see the choirboys. So, yes, I do accept that when you look at Monsignor Portelli on his own we may not be able to negate this to the standard that we need to, but when you look at all of the evidence it does. Even Monsignor Portelli on his own, we say that he makes a number of concessions.







So just taking you through that evidence, if I could start at - I am finally getting to answer Justice Nettle’s question - if we go to the respondent’s book of further material at 497, line 6, this is examination‑in‑chief.







EDELMAN J: That is 597. What page is that?







MS JUDD: Page 583 of the transcript, 497 of the respondent’s further material. So line 6:





We would go down the mail aisle ‑ ‑ ‑





GORDON J: I think it should read “main aisle”.







MS JUDD: Yes, I think so.





If we were processing externally the Archbishop would stop at the top of the stairs to the cathedral or perhaps just at the bottom of the stairs, and he would greet people as they left.







Mr Gibson asks:





Are you speaking as a matter of practice now, that is your recollection as to what he would do as a matter of practice?‑‑‑Yes, he always did that.

As opposed to having a specific recollection of any particular Sunday solemn mass during which he did that, is that right?‑‑‑Yes, that was his normal practice ‑







Then if you go down to line 19, he talks about it varying:





from as little as ten minutes, say up to 15 or nearly 20.







Then if you go down to line 26 he talks about the lesser time being:





at least six or seven minutes –





So he does not tie himself to 10 minutes, does not tie himself to 20, he actually really volunteers going down to six or seven minutes. Then Mr Gibson says:





Sure, but was there an occasion or were there occasions, as best you can recall, where the Archbishop might depart from that practice and speak for a short period of time before returning to the sacristy?‑‑‑He may have done so on occasion, yes.







Over the page:





When I say short period of time, I’m speaking of just a couple of minutes?‑‑‑Yes, I suppose that’s possible, but I don’t really recall it, but it’s possible.







So he has gone from 20, 15, 10, six or seven, and recognising that there may have been departures for only two minutes, bearing in mind, I am saying look at the whole of the evidence which includes those other choirboys.







BELL J: And the requirement to eliminate the reasonable possibility that the practice was as he recalled the practice to be.







MS JUDD: Yes, I understand that. But it can be eliminated by looking at the whole of the evidence, and that includes the complainant’s evidence, it includes the supporting evidence, it includes the other choirboys and the, I think it is Irwin, just because there is some evidence pointing to innocence does not mean that the jury were not entitled to reach a conclusion beyond reasonable doubt on important issues, and that was an issue to do with an element of the offence, so equivalent to what your Honour is saying here.







NETTLE J: What do we make of Portelli’s evidence, say, at page 511? Since this was the first time that Pell was actually celebrating the mass, there were lots of people that wanted to meet and greet him - page 511 of the appeal book, 597 of the transcript, line 26.







MS JUDD: I am just looking – here it is. I have too many books. Yes, and this is the point I think that Justice Gordon raised yesterday.







GORDON J: Lines 26 through to 31.







MS JUDD: Yes. So what I say about that is the same thing I say about the other points, and the best way of answering that is to go to the way the majority analysed this, because they analyse it and they set out the evidence.







GORDON J: Two questions which really go together are here in terms of this evidence. It goes not only to the practice of meet and greet, but also to the practice that Portelli identifies down the bottom of that page that he was not left alone robed.







MS JUDD: Yes.







GORDON J: They seem to go together at the moment.







MS JUDD: Yes, they do go together because we say the overall effect of the evidence is that the applicant has demonstrated a preparedness to not stick to the practices as articulated, and that is why I do need to go to this other evidence. There are the concessions from Portelli but there is also, as I say, the evidence of the other witnesses that demonstrate both of those two points, and I will come to it.







NETTLE J: But let it be accepted that there were occasions on which they departed from the practice. Here Portelli is saying that this was the very first time that the Archbishop celebrated the mass, there were stacks of people who wanted to talk to him and he had to stop on the steps to do so.







MS JUDD: Yes, okay.







NETTLE J: I mean it purports to be an exact recollection of what occurred.







MS JUDD: Yes, but can I take you to the core appeal book ‑ ‑ ‑







GORDON J: Sorry, just to complete that, for fairness, on the following page he is then asked further questions which reinforce the answers that he has given.







MS JUDD: Yes, I understand that. If you go to the majority judgment starting at 244 which is at the core appeal book page 256, this shows the limitations of his memory about those big occasions. He is asked about whether he had a memory of the Archbishop’s sacristy being available in December 1996, whether that was available for robing, and he had no memory. So one thing he does not have any memory about on that occasion. Over the page at paragraph 245 he is then asked:





whether, in late 1996, processions out of the Cathedral were internal or external.







So again, the very times that were the beginning:





He said that he could not recall. Asked whether he could recall any specific Mass said in the –







So this is number 3:





latter part of 1996 –







he talked about:





the Mass of the Vigil of Christ the King, which is the last Saturday of November.







So he volunteered that. He talks about:





the four Sundays of Advent; I think the Archbishop might have been present at two of those, and then of course the Masses on Christmas Day.







Then he was asked:





what made him think that Cardinal Pell was present for two of the Sundays in December –







The answer was:





He would’ve have been in Sydney for the Bishops’ Conference for part of it -







So that is how he gets there. He is not there for all of it so he is saying, well, he must have been there for two of them because he could not have been there for all of them.







KIEFEL CJ: Ms Judd, that might be a convenient time for the Court to have its break.















AT 11.16 AM SHORT ADJOURNMENT















UPON RESUMING AT 11.31 AM :















KIEFEL CJ: Yes, Ms Judd.







MS JUDD: Thank you, your Honour. I was at page 257 of the core appeal book, paragraph 245, and I pointed out a number of matters that Monsignor Portelli could not remember about that latter part of 1996, notwithstanding the importance of it as identified by Justice Nettle and Justice Gordon and that relevant transcript.







Now, going down to paragraph 246 ‑ I will not read this out because that is the evidence that I read out earlier, I took you to the transcript ‑ and I will come to the second point about the unaccompanied whilst robed I think later, because I just want to stay with this particular point. So I want to jump to the different approach in cross‑examination, and that starts at paragraph 248 on page 260. So in cross‑examination there was essentially puttage and the puttage included, on page 261, near the bottom of the page, Mr Richter says:





you do recall those occasions, those two, don’t you?







And he answers:





Yes.





So when it is specifically put to him, he jumps from a practice and no specific recollection to agreeing that he recalls those two occasions. Then over at page 263, which is still part of paragraph 249, but down quite a bit, there is the question about:





And that is because the 1996 solemn Masses conducted by Archbishop Pell, there were only two of them, and they were memorable to you?







Answer:







Yes.







So again puttage.







GAGELER J: I am sorry, what is the word you are using?







MS JUDD: It is a thing answered, but rather than open‑ended questions, these are propositions being put by Mr Richter ‑ ‑ ‑







GAGELER J: Thank you.







MS JUDD: ‑ ‑ ‑ because that was something that the majority regarded as significant in terms of the way he answered his questions. I do not mean puttage in the sense of mere puttage. I just mean he is putting propositions to him which the witness is agreeing with.







GAGELER J: Thank you.







MS JUDD: That is my shorthand. So that is how the cross‑examination proceeded, and certainly it has been jumped on here and it was jumped on at the trial and the Court of Appeal, that that meant that there was a specific recollection about those two dates. But then when you go to the re‑examination, which is over the page, you have got a question about 10 November:





Q: . . . you’ve given evidence as to what occurred on that occasion. Where was it that Mass was said by Archbishop Pell on 10 November?‑‑‑

A: You’d have to remind me.

Q: And how many occasions?

A: How many occasions, what?

Q: On the 10 November 96?

A: From memory I think there were two.

Q: Do you remember where they were?

A: I’m sorry, I wasn’t trying to remember when I was told.





So that is why it is really important to compare the cross‑examination and as I said the puttage being told with the open‑ended questions. It does not have to be attacking his truthfulness, but it certainly does make a big mark in terms of his reliability.







BELL J: Where you are left with is a witness who does give evidence, albeit in cross‑examination, but of recall in relation to the first occasion when the new Archbishop of Melbourne greeted people outside the doors of the cathedral, and even if he did not do that, his evidence in‑chief and maintained throughout the balance of his examination was of a regular practice.







MS JUDD: Yes, I still have to take you to the other evidence ‑ ‑ ‑







BELL J: Yes, indeed.







MS JUDD: He does make some concessions. But just staying on this point to do with those two days in December:





Q: On 15 December 1996 you said you had a memory of that occasion?







And you go down, I will not read it all out, but it is worth reading ‑ ‑ ‑







BELL J: I am sorry, what page is this?







MS JUDD: I am at page 264, so halfway down, question:





Q: On 15 December 1996 you said you had a memory of that occasion?





So at the moment I just excluding the specific ‑ really this getting as high to amount to an alibi – not in the sense that Justice Gordon ‑ that Justice Bell is talking about the practice effectively amounting to an alibi. I am talking about this was not so high as to amount to, “I have a very specific memory on those two days”. So 15 December, you said you had a memory of that occasion, and then you go over the page to the top of page 265, he says:





A: I’m sorry I don’t have the list in front of me.







GORDON J: He is being asked questions about what he did after those two events, the mass on those two days. That is what that questioning is about: “Where did you go after, where did you go immediately after?” which arises, as I understand ‑ and he says, “It depends whether I had an afternoon appointment or not”.







MS JUDD: Yes, but it casts doubt on him being able to specifically give evidence about having a specific recollection on that date, particularly bearing in mind ‑ ‑ ‑







KIEFEL CJ: Of everything that happened that day, rather than the important event that he has identified.







MS JUDD: Yes, but he did not even – when he gave his evidence in‑chief, he says the standing on the steps and the external procession, he tied it to there being an external procession, the standing on the steps, in‑chief, and he did not even remember for 15 and 22 December whether there was an external procession or an internal procession.







Yes, he agrees about those dates but in circumstances where he just cannot remember anything about those dates, how does he remember the positive evidence of him standing on the steps that day when he cannot even remember the procession itself.







NETTLE J: Is that not because he can remember the very first occasion on which the Archbishop celebrated mass in his new capacity, whichever date it was, and we know from the church records that it was on 15 December?







MS JUDD: But when he is asked that, and going back to paragraph 245 at page 257:





Asked whether he could recall any specific Mass said in the latter part of 1996 ‑





And the ones he remembers and identifies are not really those two; they are the November ‑ ‑ ‑







KEANE J: No, that is not right.







NETTLE J: He is talking about Advent.







KEANE J: There are two in Advent.







MS JUDD: Yes, he is saying ‑ ‑ ‑







KEANE J: They are the December masses.







MS JUDD: Yes, but he is saying there were four in Advent but then when he is asked what made him think that Cardinal Pell was present for two of the Sundays in December, he does not answer, I remember those occasions, I remember him being there because they were the two most important ones. He says, well, he must have been at two of them, but he is in Sydney for the Bishops’ conference for part of it. So he is going to have been away for ‑ ‑ ‑







NETTLE J: Away for two of the four.







MS JUDD: Yes. He is not saying, I specifically remember that day. I remember standing on the steps that day. His specific recollection is that he must have been there for two of those and he is not saying, I remember them because they were particularly important.







NETTLE J: So it comes to this: in the end you say the jury were entitled, notwithstanding the firm way in which he put his recollection, to not accept it. Is that it?







MS JUDD: Yes, it is, but I disagree with the firm way in which he put it because when he was asked ‑ ‑ ‑







NETTLE J: I withdraw “firm” – in whatever way he put it they were entitled to reject it.







MS JUDD: Yes, they were, and more importantly the majority were entitled to say that this did not preclude the jury from a path of reasoning that this was effectively an alibi for those two days.







NETTLE J: Well, plainly, if they are entitled to reject his evidence about that and about the practice and about the other things, giving rise to a possibility or probability he was there ‑ ‑ ‑







MS JUDD: Yes. When you look at it – when you look at both, not just the cross‑examination but the examination in‑chief and the re‑examination ‑ ‑ ‑







BELL J: Your contention is that the prosecution negatived that the Archbishop was present on the steps of the church on the occasion charged in count 1.







NETTLE J: Beyond reasonable doubt.







MS JUDD: I need to come to the practice evidence, though.







KIEFEL CJ: What is the answer to the question put to you?







MS JUDD: Yes, the Crown did do that.







BELL J: It negatived it by establishing the possibility that he was not.







MS JUDD: Well, it negatived it because we say, when you read the evidence in its entirety, you have Portelli being strong on there being a practice, not strong on a specific recollection of what happened on that day but strong on there being a practice. He does not tie the practice of standing on the steps to a particular timeframe. He says that – he gets it down to six to seven minutes in terms of the normal practice. He also makes concessions about it not being a universal practice.







BELL J: Did Monsignor Portelli have a recall of any occasion when the practice was not adhered to – that is, distinct from allowing, as an honest witness might, the possibility. But what I am directing your attention to is whether he could recall any instance when the Archbishop had not adhered to the practice.







MS JUDD: I do not think so, but can I just get back to you with that “I do not think so” is not right, because Portelli was pretty clear that there were practices. He did talk about there being, perhaps, some changes to practices in circumstances where there were other events on in the day, but I do not think it gets quite as high as what you are saying and I need to – I have not got it at my fingertips.







GAGELER J: Page 258, line 18, I think is the answer.







MS JUDD: Yes, that is – I think that is as high as it gets in terms of a concession.







KEANE J: Ms Judd, the jury would not have been entitled, would they, on the basis of the concessions and the uncertainties that you have taken us to in Monsignor Portelli’s evidence to reject Monsignor Portelli’s evidence that he actually was there at those two masses?







MS JUDD: I submit that they were entitled to ‑ ‑ ‑







KEANE J: They were entitled to reject his evidence that he was present at those masses.







MS JUDD: No, no – sorry, not that he was present at those masses, no.







KEANE J: Okay. So in terms of the way the case was run, it was not open to the jury to take the view that Monsignor Portelli was not there. Monsignor Portelli gives evidence of a couple of practices that exist and says, it is possible they were not followed because of the exigencies of the particular day, but he cannot recall that there was any particular exigency that caused a departure from the practice. Is not the evidence of practice, where it is honestly given, usually regarded as powerful evidence?







MS JUDD: Yes, but‑ ‑ ‑







KEANE J: I mean, I can say I shaved last Friday, not because I actually have a specific recollection of it, but because it was a workday and I shave on workdays.







MS JUDD: So, I think what I do need to do is go to some of the other material. So if I could take you to page 749‑ ‑ ‑







GORDON J: This is the respondent’s further‑ ‑ ‑







MS JUDD: ‑ ‑ ‑ of the respondent’s further material. So this is one of the choirboys, La Greca. At 749, which is 1197 of the transcript, he says, at line 25:





Do you know what Archbishop Pell would be doing as you’re rounding that left corner?‑‑‑No, sometimes he would just wait and speak to the congregation.

And other times?‑‑‑Other times he might have just kept on walking with us.







NETTLE J: That does not help you much, does it?







MS JUDD: Yes, it does.







NETTLE J: Because on your analysis, if he kept walking on this occasion he would have been in at the front of the procession, through the glass door and into the sacristy even before the boys arrived.







MS JUDD: Yes, there are variations in all the material that I am going to give you as to the other route that he follows.







NETTLE J: But it is surely part of the Crown case that Pell went back into the sacristy from the cathedral and not through the glass - through the toilet corridor and glass door?







MS JUDD: Well, we do not know which way he went back in. He could well have gone through the south transept doors. So you can go out with the procession and then you come back in, so if I could take you to maybe the diagram ‑ ‑ ‑







NETTLE J: No, I am familiar with it.







MS JUDD: Yes. So, we do not know which way he went in, and we also do not know - we just do not know. He may have gone down the corridors and Mallinson certainly gives some evidence about from time to time him going back that way. But there are a few others that I want to take you to. So this is one ‑ ‑ ‑







BELL J: Just before you do, the witness said:





Other times he might have just kept on walking with us. I can’t recall exactly.







MS JUDD: Yes, and then let us go over, though, to 539 – sorry, 755.







BELL J: Sorry, 755?







MS JUDD: Page 755, line 25:





All right. On the occasions upon which Archbishop Pell did process with you externally, remember earlier you said sometimes he’d wait at the steps and other times – and I said what about other times, and you said, “Well, sometimes he processed with us”. On those occasions, are you able to describe whether he – well, firstly his position?‑‑‑M’hmm. He’d be at the rear of the procession.







Over the page:





Yes, and secondly, on those occasions, would he walk – well, what would his position be throughout the procession?‑‑‑It’d be – it’d be a more dignified procession from the choristers because we knew that the archbishop was behind us, and so once we got to that area depicted in picture 23, we would sort of open up and let the archbishop and the clergy process in first before we would enter.







NETTLE J: That is what I mean. If he did not process, he is into the sacristy before even the altar servers arrive there to bow and finish up.







MS JUDD: This is an example of Pell’s preparedness to not necessarily stick to the practice of always staying on the front steps. So we do not have to establish, and it does not have to be established, that he went this way. I am putting a series of other witnesses, and there is more to come, to demonstrate that the practice was not as strong as an invariable practice, and it was not as strong as – and remember, this was a long – when you talk about a practice, it is a long period of time.







BELL J: At some stage when you take us through the evidence, will you deal with the fact that the prosecutor put to the jury that the practice of greeting parishioners did not start until 1997?







MS JUDD: Yes.







BELL J: You will take us to the evidentiary support for that submission?







KIEFEL CJ: Or are you abandoning it?







MS JUDD: It was not – I do not think that was really – it ended up being really persisted with, that part of it. I certainly do not ‑ ‑ ‑







KIEFEL CJ: You do not intend to pursue it?







MS JUDD: ‑ ‑ ‑ put it forward as an evidentiary basis to say there was evidence that it did not start until that latter point in time.







KIEFEL CJ: But that was how the trial was conducted.







GORDON J: You can see that from the cross‑examination of Mr La Greca at page 763. It was put to him it did not happen until after.







MS JUDD: There was some – and I suppose importantly for this Court the majority did not reason down that path. They did not pick that up as a reason for saying it was open to the jury to reach the conclusion that they did.







KIEFEL CJ: Ms Judd, did the majority make a finding of the kind that you have just mentioned in relation to the evidence of Mr La Greca and others that it affected the weight or the reliability of the monsignor’s evidence?







MS JUDD: They said when you look at that evidence in its entirety ‑ ‑ ‑







KIEFEL CJ: Can you point us to the finding because the part that you took us to in the majority’s reasons before had them discussing the credibility of the complainant then looking at the monsignor’s evidence and saying that it does not detract from the credibility of the complainant.







MS JUDD: No, I will ‑ ‑ ‑







KIEFEL CJ: I think that is how most of the evidence is dealt with.







MS JUDD: I understand that. Might I be permitted to just go through some of these other witnesses because ‑ ‑ ‑







KIEFEL CJ: And then you will take us to the finding?







MS JUDD: Then I will take you to that.







KIEFEL CJ: Yes, thank you.







MS JUDD: So, the next one I want to take you to is Nathan, at 567 of the respondent’s further material - page 567, 991 of the transcript, line 12. So Nathan is another chorister – line 12:





So, did you ever see him pause at the steps at the front entrance and not process out with you or your recollection is that he was always processing out with you?‑‑‑I’ve got memories of both. I think there may have been times where he um, stayed at the front of the steps and spoke to the congregation, and there’s also times that I remember walking all the way around.





Going to Parissi at 583, another chorister - line 19:





Was there ever an occasion where during the external procession after Sunday solemn mass you would be in a position to see him because he was present?‑‑‑Usually he would walk by us, we would stop and wait for him to enter the back of the cathedral first, um, and he’d walk by and just sort of acknowledge us and then walk back in and then we would follow after.





It goes all the way over to page 584, so all of that is relevant, but line 2:





Would he ever, having walked by the choir that was standing there, go in through the – what I’ve called the southern transept doors, rather than going up to the corridor that you’ve described?‑‑‑No, it would always be the corridor.





So that witness’ observation is the corridor ‑ ‑ ‑







NETTLE J: It seems that La Greca and Nathan, and now Parissi, all say that when Pell did process he went all the way around to the corridor and in through the glass door.







MS JUDD: Yes, except that Portelli himself says that if he ever went around he comes back through the south transept door, so I will take you to that as well. Sorry, I was on 584. There is a question at line 9:





Are you able to give us some idea of how common that was, the frequency with which he would do that; that is, the choir would stop while he walked past?‑‑‑It would happen regularly but not every time. It would just depend on instructions -





Then going over to 592 to 594, this is the same witness. This is in cross‑examination, line 26:





You gave some evidence about some occasions where you stopped – the choir stopped and waited for the archbishop to go past, this is after mass?‑‑‑Correct.

We’ve heard some evidence about the way that processions, external processions occurred . . . focussed on 1996 and 1997?‑‑‑M’hmm.

That description isn’t one which has been put forward by other witnesses. Is it possible that that wasn’t actually Archbishop Pell that you’re describing but a procession ‑ ‑ ‑?‑‑‑To the best of my recollection there would be times when that would happen with Archbishop Pell. Whether it happened sooner rather than later I can’t recall definitely because I was there for a while, and sometimes those do blur into different priests and archbishops, yes.





But he says it definitely would happen with Archbishop Pell.







BELL J: I think the evidence was that Archbishop Pell’s predecessor did not adopt the practice of stopping to greet parishioners outside the western door. That was a novel practice introduced by the Archbishop.







MS JUDD: Yes, and I think that is why Parissi is dealing with when it first started to happen with Archbishop Pell. Then again all of that is relevant, but bearing in mind I have only got one day here, jumping down to line 22:





If I suggested to you that the, in terms of Archbishop Pell, that that actually didn’t happen on a regular Sunday solemn mass day when there was an external procession, this idea of waiting for him to come, do you accept that you could be wrong about that ‑







He says:





Yeah. As I said before, it would happen infrequently, so it wouldn’t happen all the time, but on most of the . . . times that I can recall it would.







So that is Parissi.







GORDON J: On 594 though he does dispute, does he, that though he lacks specific memories in terms of 1996, that he is not disputing on those occasions that he would stay on the steps?







MS JUDD: No, he is not disputing that there were times that Pell stayed on the steps, but what he is also very clear at saying is that there were occasions when he did not stay on the steps. He just cannot be precise about times, because he is asked that earlier question focusing on 1996 and 1997, so he is being an honest witness and saying, I cannot say for sure 1996/1997 because I cannot remember when things changed, but I do have that recollection in relation to Archbishop Pell. I still have more witnesses but just dealing with Justice Nettle’s point on Portelli, page 540 ‑ ‑ ‑







GORDON J: At 540, lines 6 through to 27 he gives evidence, does he not, that they would move off the stairs and return to the sacristy via the doors at the south transept.







MS JUDD: Yes, I think it is at page 540, that is right, so at line 11:





So it would be external for a part until you got to the south transept door, and then you’d come in one of those three doors and go in internally ‑







So that is a different way of him coming in if he had not stayed on the front steps. You will see that it is related to that if you go back to page 539, line 30. It starts off:





So on the one or two occasions that the archbishop did not stay at the front steps, you ‑ ‑ ‑?‑‑‑On a Sunday.







And so on. Now, can I move to La Greca at 757, another choirboy.







KIEFEL CJ: Is that different from the Mr La Greca we have already been to?







MS JUDD: No, it is the same one. So what I have taken you to is some evidence of the choirboys remembering him not staying on the front steps, but processing with them. What I am now taking you to is some of the evidence whereby the choirboys see him being in that choir room immediately after mass, so it is evidence that is – it is not saying, we saw which way you went, but it is evidence that would be inconsistent with him being on the front steps. La Greca at 757, line 12:





When you were in derobing after Sunday solemn mass did Archbishop Pell ever attend inside the choir rehearsal room, and I am again asking about the second half of 1996?‑‑‑I’m not sure exactly of the period, but there were occasions that he came past to congratulate us and to thank us for our work.





When you say there were occasions I was asking about after mass. Are you including that or were there ‑ ‑ ‑ ?‑‑‑No, it was after mass. It was after mass.





Parissi, again I have referred to some of the evidence but at page 587 on this point, and this also goes to the robed/unrobed point, at line 8 – perhaps if I start at the top of the page:





After mass had finished and you’d processed back to the choir rehearsal room were there ever any occasions where you saw Archbishop Pell?‑‑‑On the odd occasion he would come into the choir room or at least passing by would say thank you and congratulations on a well sung mass, but that’s about it.





Then there are some questions about robed or unrobed. There he says he is unrobed. Now, if he is unrobed by that time that he is going into the choir room, it is probably pretty quickly.







GAGELER J: What do you base that on, that submission?







MS JUDD: Only that – and I can take you to this – but what happened in the choir room is that they would go back to the choir room and there would be this activity and then they would be dismissed after about 15 minutes. I will come to your Honour’s point about the choir rehearsal. It may not be pretty quickly but if he is going in immediately after mass, he is going to be robed. So if it is a little bit later than that, he is going to have to have had time to unrobe. That is all I mean by that.







BELL J: Were the choir only present on Sunday solemn masses?







MS JUDD: Yes.







NETTLE J: There were other masses at which they sang. Mallinson said they sang at virtually anything that was serious, including the Christ the King vigil, which was the first one, and so on.







GORDON J: The one on Saturday night.







NETTLE J: And they were at the Royal Exhibit Building for the inauguration.







MS JUDD: On a regular occurrence at the Sunday mass but also on big occasions. Now, this is something that I do want to take the Court to in a bit of detail. I am still on this point, but while I am on this page, this choirboy says, line 23:





Did you yourself ever go into the sacristies?‑‑‑No. I could see into it on occasion, but never ‑ never would go in.







I will deal with ‑ there is a lot of evidence on that point as well, but seeing as I was on that page I thought I would point it out because it might mean I do not need to go back to it later. So Nathan, on this point about being in the choir room after mass, page 568, line 13:





Generally for what period of time did the de‑robing by the choristers take?‑‑‑Ten minutes.





Would you ever see Archbishop Pell in that robing room or rehearsal room whilst you were de‑robing?‑‑‑I have a recollection of him popping in while we were already de‑robing just to congratulate us on a good performance or on a great mass, something to that effect.







So, he has at least put that into the 10‑minute period. Mayes is someone I have not taken you to yet at ‑ ‑ ‑







GAGELER J: I am not sure that is right, is it, if you look at the next question and answer at line 20 to 22?







MS JUDD: I suppose it has to be qualified by that, he also answers at line 27:





Was he robed or unrobed?







That is probably right, I probably overstated that with reference to the 10 minutes, just a little bit before.







GORDON J: Can I just understand why we are being taken to the evidence? Is this to demonstrate what, that he did not stay on the steps? Is that it?







MS JUDD: Yes, yes. That is exactly it.







GORDON J: On occasion.







MS JUDD: On occasion ‑ the evidence ‑ ‑ ‑







GORDON J: No, I just wonder what the proposition is ‑ ‑ ‑







MS JUDD: The proposition is ‑ ‑ ‑







GORDON J: ‑ ‑ ‑ that what we are being taken to is that he ‑ that there was evidence to demonstrate that on occasion he did not stay on the steps.







MS JUDD: Yes. That there was evidence that demonstrated a preparedness not to comply with those practices, and it goes into the mix of all of the evidence. It is, as Justice Edelman rightly said, you have got to look at the whole of the evidence. Now, this is evidence ‑ the evidence of standing on the steps, and having that practice, is evidence that is favourable to Pell in terms of the jury not being able to reach the requisite standard of proof beyond reasonable doubt. But in reaching that conclusion, all of the evidence has to be taken into account, and that includes the complainant’s evidence, and very significantly, it includes the supporting evidence that I am going to take you to. So, if this amounted to ‑ ‑ ‑







KIEFEL CJ: I am sorry, is there more of the same sort of evidence that you are going to take us to?







MS JUDD: Yes.







KIEFEL CJ: Then you are going to take us to the finding ‑ ‑ ‑







MS JUDD: Then I am going to take you to the finding. Page 723 is Mayes. Mayes at 723, line 2:





In the second half of 1996 do you recall whether Archbishop Pell ever after mass attended or went into the choir rehearsal room?‑‑‑I have a memory of him coming in at one point. I can’t recall when.

Was he robed or unrobed?‑‑‑It was very – very rare to see him unrobed. Yeah, he would have been robed.





And then this is perhaps a bit ‑ ‑ ‑







KIEFEL CJ: What does that say about the practice of being on the steps?







MS JUDD: Because he is in the choir rehearsal room and the recollection is that he is robed, so he is talking about – I am trying to do this quickly because of the time. If you go back to 722, line 13:





And for what period of time would choristers take to de‑robe and get out of there.





Line 15:





From the moment that we arrived, that the first boy arrived in there, it was probably ten to 15 minutes until nearly everybody was gone.







So he is talking about a period of time after mass when they were de‑robing. So the questions are in that context and so that is why it is relevant to him standing on the steps. And then line 10, on page 723:





Do you recall when it was, that is whether it was – do you recall at what point that was that he popped in, in terms of when you were derobing?‑‑‑Can you clarify at what point? You’re saying during that 15 minute window at the start or end of it?

Yes, are you able to say?‑‑‑It would have been quite early on, in the first five minutes, um, while everybody was still there.







GORDON J: What do we do about 729, lines 19 and following where, in cross‑examination, he talks about having on occasion got out of his robes because he is slower than the others and observes Pell on the stairs?







MS JUDD: It all goes in the mix. Pages 619 to 620 is Thomas. It starts ‑ ‑ ‑







BELL J: I am sorry, what page did you say?







MS JUDD: Page 619.







BELL J: Thank you.







MS JUDD: This is also about robed and de‑robed ‑ ‑ ‑







GORDON J: I think his evidence about the steps, as I recall it from my notes, are at 617, lines 1 to 10.







MS JUDD: So I have got 619 to 620. He talks about – so at 618 he is talking about the procession. And then over the page ‑ 618:





after you returned to the robing room after mass, Sunday solemn mass, and were getting changed, do you recall ever seeing Archbishop Pell?‑‑‑I do recall seeing Archbishop Pell.

Where?‑‑‑Ah, just probably as we were – as I was leaving, he’d be in the actual corridor area of the chorale room just saying hello.







And then line 11:





Sometimes he’d just be robed . . . sometimes he might be already de‑robed just coming to say hello to some people, that’s all.







Then it continues:





Sometimes he would be on his own, sometimes he might have another priest or some of the altar boys in there as well, walking in just to say hello.







So again, inconsistent with standing on the steps. And then just so that I do not have to come back to the practices too much, Bonomy at 608 to 609 – because the Court of Appeal deal with both of these points, so it will be easier to have all the evidence before I answer the Chief Justice’s question – Bonomy says at 608 to 609, were there:





occasions when you saw him walking around the corridors, was he robed or unrobed?‑‑‑It would be both.

On the occasions that you saw him walking around the corridors robed, was he with others or on his own?‑‑‑Both.







GAGELER J: So are you saying that that is inconsistent with him standing at the steps for 10 ‑ ‑ ‑







MS JUDD: No. No, I am not at all saying that. There were two practices relied on. The main one I have been addressing is the practice of standing on the steps, but Justice Gordon also asked me the questions about the practice of always being accompanied whilst robed. So I was really just putting that in the mix to answer her question. The big point is the standing on the steps, really, in terms of this alibi point.







GAGELER J: Which of the witnesses you have taken us through deal with that point?







MS JUDD: All of the witnesses – I have dealt with all of the witnesses now on the standing on the steps. So the being accompanied whilst robed, you have a concession from Portelli at 504 to 505.







GORDON J: I do not seek to extend this exercise, but there are two on my notes – one was McGlone and the evidence about his mother, and standing on the steps. That was positive evidence which – so this is just dealing with evidence which you say was inconsistent with it. Is that what we are dealing with? We are not dealing with the other evidence that goes the other way; for example, even Rodney Dearing on my reading of the evidence seemed to suggest that they stood on the steps.







MS JUDD: With McGlone ‑ ‑ ‑







GORDON J: No, I am just working out – so there is other ‑ ‑ ‑







MS JUDD: No, I have been dealing with evidence that is inconsistent with it.







GORDON J: Thank you.







MS JUDD: But I can deal with McGlone because it ‑ ‑ ‑







GORDON J: No, I am not asking you to. I just want to make sure we understand what we are dealing with.







MS JUDD: I do not want you to go away. I might forget. Dealing with McGlone, there are two points we make about that. Number one is that he talks about a specific recollection with his mother. That can only be an alibi for only one of the two days, and the second point is that in terms of the practice he would normally be processing around. He goes into the priests’ sacristy and, while they were still in formation, all of the altar boys bow to the crucifix.







Now on this occasion – and this is going to be the last point on the evidence that I will come to later – the reason he says he observes it on that day is because he ‑ rather than waiting to help clean up the sanctuary or stay in the sanctuary, or whatever it is, he then goes out that particular day.







So even if you accept McGlone, the highest it gets is only an alibi for one day. There are also limitations as to how far you can accept that because he said he had never been to a Saturday night mass and he was adamant about that. He had reasons for not going to that particular mass but as it turned out he had in fact gone to that mass. So there were some limitations but the most we get with McGlone is not so much the practice but the potential alibi for one of the two relevant dates.







NETTLE J: Just before you pass to the next subject, you took us to 619 and Mr Thomas’ evidence. Justice Gordon referred you to 617. At the top of that page Thomas talks about the other priests who processed at the back of the procession, around through the corridor and into the sacristy with the altar boys ‑ altar servers. There was also some evidence I think from the complainant that there were other priests in operation on the day, those days. Is one entitled to infer from that that other priests would have processed in with the altar boys into the priests’ sacristy and have then begun to unchange, as Monsignor Portelli said that they did?







MS JUDD: I do not think it was ever definite that there were other priests on those days and ‑ ‑ ‑







NETTLE J: The complainant said that there were other priests on those two days.







MS JUDD: There would have been. McGlone said certainly for one of the days – there is a lot of material here.







NETTLE J: There is a lot.







KIEFEL CJ: You are not the only one who has a lot of material, Ms Judd, but you are supposed to be taking us through it efficiently.







MS JUDD: I am trying to take you through it efficiently.







NETTLE J: Perhaps you can leave that to later, if it would suit you. You go ahead on your own pace.







MS JUDD: I have got a lot of helpers. I just have to know which one to go to. So I might leave the evidence at the moment and go to the Chief Justice’s question ‑ ‑ ‑







KIEFEL CJ: If there is any further evidence of this nature that you seek to rely upon, you could always prepare a note over the luncheon adjournment ‑ ‑ ‑







MS JUDD: I will just give you the page references.







KIEFEL CJ: ‑ ‑ ‑ in terms of a schedule and we can refer to it ourselves.







MS JUDD: Yes. Well, the only other pages I was going to take you to about there being accompanied whilst robed was the concession by Portelli at 504 to 505, and the substance of which was that he said that there might be an occasion when he accompanied Pell to the sacristy and left him there, and went off to do something else and would come back. And he says the timing is pretty – he did not leave him for long. And then ‑ ‑ ‑







NETTLE J: Two minutes.







MS JUDD: Yes, and then Mallinson at 317, so I do not need to take you to that.







BELL J: I am sorry, Mallinson at what?







MS JUDD: Mallinson at 317.







BELL J: Thank you.







MS JUDD: Now, if I could take you to the core appeal book, at paragraph 282 ‑ sorry, it is not that page.







GORDON J: Is it not the next ‑ page 283 where the conclusion is set out about dealing with the position on the steps?







MS JUDD: Sorry, I am looking at page – yes, paragraph 283. It is, yes. So they did go – there is a couple, actually. So:





Conclusion

The content of these competing selections from the evidence illustrates why, as we said earlier, the overall effect of the opportunity evidence was that of uncertainty and imprecision. As has been seen, Portelli properly accepted the possibility that Cardinal Pell might on occasion have stayed on the Cathedral steps only ‘for a short period of time before returning to the Sacristy’. He also accepted that there may have been occasions on which he did not himself accompany the Cardinal back to his sacristy after Mass and that, even if he had escorted the Cardinal back, he might not have gone into the Priests’ Sacristy with him.





So that was that last piece of evidence that I was talking about. He does say sometimes if he did not do it, then he would expect Potter to, and he does say sometimes when he was not with him, it might be because he is talking to another priest. Page 284 is their conclusion:





For the reasons we have given, the jury were entitled to view those answers, and the evidence more generally, as leaving open the realistic possibility that Cardinal Pell was ‘alone in the sacristies only a few minutes after the end of Mass’.







So they are dealing with it there, as possibility but ‑ ‑ ‑







KIEFEL CJ: The witnesses you have just referred to are discussed at paragraph 282.







MS JUDD: Yes, thank you. But bear in mind this is dealing with – this is Part II. This is where they are dealing with the evidence in detail and the very firm contentions about that that evidence effectively amounted to any possibility. In Part I they acknowledge the opportunity evidence and look at it more from a whole of evidence perspective and it goes into the mix of whether or not they are satisfied beyond reasonable doubt.







BELL J: I am not sure from that submission what one makes of 284. You have a conclusion that it was open to the jury to consider the realistic possibility that the offence could have occurred.







MS JUDD: Yes.







BELL J: Well, to some that seems awfully like a reversal of the onus of proof.







MS JUDD: That is why I say it is dealing with it in Part II, because in Part II they very specifically said, of course, if it was impossible, that of itself amounts to a complete answer. In Part I they are not reversing the onus of proof. They say over and over again they are conscious of the onus of proof and when they are assessing whether or not the offences took place and the credibility and reliability of the complainant, they very much take into account the opportunity evidence, and that went into the mix as to whether or not the jury were entitled to find beyond reasonable doubt.







BELL J: Coming back to paragraph 284, bearing in mind the requirement that the Crown eliminate the reasonable possibility that, no matter how impressive the complainant was, other evidence pointed to the fact that the offence could not have occurred in the way the complainant described because the Archbishop was somewhere else. Now, that is what their Honours are dealing with here and they are saying, well, it was open to the jury to consider as a realistic possibility that he was in the sacristy, which leaves rather open the realistic possibility that he was not, because he was on the steps outside the western door.







MS JUDD: It is not as articulately expressed so as to make it as clear. It is the Part II analysis. When you go back to the Part I analysis ‑ ‑ ‑







KIEFEL CJ: Could you just remind me, Ms Judd, what you mean by the Part II analysis?







MS JUDD: The Part II analysis is really dealing with the submissions that were put and the language that was put, the solid obstacles – and that is how it was called – the solid obstacles to conviction. So this is taking each of those solid obstacles in isolation.







KIEFEL CJ: Yes.







BELL J: Looking at one solid obstacle, it was the suggestion of what is commonly enough called an alibi, namely, the offence could not have occurred because the Archbishop was not in the place where the offence was described as occurring, and that is what paragraph 284 is dealing with, is it not?







MS JUDD: If the evidence did not leave open the realistic possibility that he could have been in that room at that relevant time, then the appeal would have had to have been allowed on that basis. So impossibility arguments were advanced and this rejects that because if there was no realistic possibility, the appeal had to be allowed just on that one solid obstacle.







BELL J: Ms Judd, looking at that one obstacle, namely, the account of the alibi on the western steps, the appeal had to be allowed if it was reasonably possible that the evidence established that the Archbishop was present on the western steps at a time when the complainant said he was committing the offence.







MS JUDD: If the evidence as a whole.







BELL J: Yes.







MS JUDD: Not just on this isolated point, not just based on Portelli; the evidence as a whole. That is why the supporting evidence is extremely important, and perhaps if I could move to that.







NETTLE J: Just this one question, do you contend that the evidence through which you have now taken us from these others, Bonomy and so forth, is sufficient to detract from the direct testimony of Portelli, that he had a specific recollection that on the first occasion on which the Archbishop celebrated mass in December 1996, he was with him and he stood with him on the steps?







MS JUDD: I say, when you read Portelli’s evidence as a whole, and when you compare what he says in combination, I say you do not even have to get to this evidence to have real reservations about Portelli, because of the way in which it was put. But what I say overall is that the effect of the evidence of Portelli, and all of the others, is, at most, you have got a practice. Portelli, for example, does not say, on that day he was there for ‑ I have a specific recollection about him being there for a particular period of time.







NETTLE J: Except there are a lot of people, and therefore it took a long time, because they all wanted to meet and greet the new Archbishop.







MS JUDD: Well, that is not precisely what the evidence was, I submit. That is something that you, on reading the evidence, may infer. But when you look at the M test, it has got to be what was open to the jury. So it is not what this Court decides they make of the evidence, it is what was open to the jury to make of the evidence.







NETTLE J: I was simply referring to Portelli’s evidence that:





Since it was the first times that he was actually using the Cathedral there were quite a number of people who wanted to greet him. So, yes, he did wait there.







You say the jury, having regard to the evidence through which you have taken us, is entitled to be satisfied beyond reasonable doubt that was not true?







MS JUDD: It is not so much – he was not attacked in terms of credibility, he was attacked in terms of reliability, because of the way he had some difficulties about remembering things, unless he had the list in front of him.







NETTLE J: Whether it be for credibility or reliability reasons, you say the jury were entitled to be satisfied beyond reasonable doubt that that was not so?







MS JUDD: I think that is what I am saying. Can I maybe just come back to that, just reflect on that and come back to that very specific question, and answer it very precisely after lunch?







NETTLE J: Right.







MS JUDD: So just on this other point that I was asked a question about in terms of the priests. McGlone says at 646 ‑ he talks about when he comes back, so at line 4:





we’re in formation and we bow to the crucifix. We’re not finished the procession until that happens.

At that point is any priest with you?‑‑‑Well, um, sometimes there is and ‑ ‑ ‑

No, I am asking about this occasion?‑‑‑I don’t recall there being any priests with us.







So that counters any specific evidence about there being priests there. There is some evidence ‑ ‑ ‑







NETTLE J: I had in mind the complainant’s evidence that the Archbishop on such occasions was always accompanied by other priests.







MS JUDD: Portelli is an example. Portelli is a priest and he was quite often accompanied by Portelli.







NETTLE J: I see.







BELL J: Was Mr McGlone’s evidence directed to what are described as “concelebrants”?







MS JUDD: I do not know. It is what it is on the page. I said I was going to go to the supporting but perhaps if I could very quickly start where I was going to