Pell v The Queen

[2020] HCATrans 27

[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 Chidiacv The Queen (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 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 start, with the outline of oral submissions.  So proposition 1 in paragraph 2, the independent assessment.  Now, if you go to the core appeal book at page 183, at paragraph 13, the last line:

Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether – on that factual material – it was reasonably open to the jury to convict the accused. 

And then going to paragraph 14:

Having reviewed the whole of the evidence, we would answer that question affirmatively.  In our view, it was open to the jury to be satisfied beyond reasonable doubt that Cardinal Pell was guilty of the offences charged. 

Jumping to 106, trying to pick out the pertinent ones, second line:

the task for each member of the appeal court in considering the unreasonableness ground is to review the whole of the evidence and decide whether the guilty verdict was reasonably open on the evidence. 

Now, in comparison Justice Weinberg at page 663 said:

Accordingly, the task of this Court in dealing with Ground 1 is to carry out an independent assessment, but of the whole of the evidence.  Having done so, each member of the Court must consider whether there is, in the mind of that particular judge, a ‘doubt’ as to guilt. 

Now, we say that the majority got it right, the M test does not require what Weinberg has said ought be done.  And then at 1034, the third last line:

Each member of the Court must consider whether he or she entertains ‘a doubt’ as to the guilt of the accused.  If that question is answered affirmatively, the Court must then move to the second stage of the M test.

Now, why I am doing this now before I move to the supporting evidence ‑ the supporting evidence is a big part of what I want to take you to and I want to take you through it slowly ‑ but Justice Weinberg said that he was not himself persuaded that there was any supporting evidence, whereas the majority acknowledge that there was supporting evidence.  In Justice Weinberg’s analysis, after having done this independent assessment to decide what he thought, he totally eliminates from any consideration a reference to the jury being able to have regard to the supporting evidence.

KIEFEL CJ:   So what are you referring to as the supporting evidence?  Supporting what?

MS JUDD:   The supporting evidence was, in my submission, two powerful pieces of supporting ‑ ‑ ‑

GORDON J:   You mean ‑ by this you mean corroborative evidence of the complainant’s account.

MS JUDD:   No, I mean what I have put in paragraph 3 of the outline of oral submissions, so other objective evidence.

GAGELER J:   Supporting what?

MS JUDD:   So the two pieces ‑ ‑ ‑

GAGELER J:   I think we are having trouble with the terminology.  What do you mean by supporting evidence?

MS JUDD:   I am trying to use language that the majority and Weinberg used here.  At paragraph 43 ‑ ‑ ‑

GORDON J:   This is the majority ‑ ‑ ‑

MS JUDD:   ‑ ‑ ‑ of the core appeal book.  If you have a look at 43, page 192 of the core appeal book, and looking at footnote 47 the majority say:

It may not be entirely correct to say that A’s evidence was uncorroborated.  To an extent his evidence was supported by reference to knowledge that he possessed which he could not have come by unless he was telling the truth.  In any event, there is nothing particularly unusual in a jury convicting an accused on the strength of a so‑called ‘uncorroborated’ complainant.

Now, that needs to also be read with 95 to 97.

GAGELER J:   So does that mean that when you use the terminology of “supporting evidence” you mean corroborating evidence?  Or are you using it in some other sense?

MS JUDD:   Corroborating evidence, I think is probably the description.  But there is no independent – there was no separate witness that came along and corroborated the version of events.

GAGELER J:   There does not have to be.

MS JUDD:   No, the corroboration that we are relying on is – the corroboration of all the places that the complainant picked, he picked the – he did not name it, but he pointed out the priests’ sacristy rather than the Archbishop’s sacristy.  And the priests’ sacristy was being used at this time, for a very short period of time, and there is material that demonstrates that other witnesses that you might expect would know about this, if it were evidence that was well known – that they would know.  So it was not universally known.  It just so happened that of all the places that this complainant picked, he picked the room that Pell was, unusually and out of normal practice, using to disrobe.

So, how did he get that room right?  He got that room right because he is in there at the time that Pell is in there.  He does not know the name of the room, he can only point to it.  If he is going to be making this up, if he is going to fantasising, you would be picking the other room, you just would not be picking that one.  We say quite powerful.

The other part of the supporting evidence is the description of the inside of the priests’ sacristy.  And, in shorthand, there is evidence that you can see only in a certain part of that room.  Well, first of all, there is evidence that that door is always locked, and I do want to take you to all of this, but in shorthand, the priests’ sacristy is always locked.

There is also evidence from the choirboys that it is a mystery, that room is an absolute mystery to them, they are not in there, they are not allowed in there.  Potter says the same thing, they are just not allowed in there, it is kept locked.  It is unlocked for short periods of time.

McGlone, and I think Portelli – certainly McGlone, but I would have to go through specifically – but it was very clear that it gets unlocked at the end of the mass.  It had to get unlocked at the end of the mass because it had to be unlocked for the altar servers to be able to go into that room and bow to the crucifix, McGlone says, then leaves that room.  And there is evidence of the altar servers then going into the workers’ sacristy to de‑robe after they have bowed to the crucifix.

So you have got it open in that timeframe, and you cannot view what this complainant described by looking through that open door, even if it was opened.  It is very clear you have got to walk right into the room and around the corner to be able to see what it is that he saw.  And not only that – so he had to have an opportunity to enter that room, and that opportunity really was pretty limited because it was pretty much kept locked.

He had to have an opportunity, not just to go in, but to go right into that room and around the corner, and he had to get in there at a time that the wine was visible, because he not only described the inside of the room, he actually describes the wine being visible.  So he was able to ‑ it sort of does not really matter whether it was red wine or white wine, the fact is he put wine in that very alcove.  So he had to be in there long enough to either poke around to see that, or it had to be there.

Now, there is evidence that the wine is either locked in a safe or put in the fridge, and I think it was ‑ Potter and Parissi talk about a fridge, but I think one of them says there was not a fridge at the time, it was really ‑ ‑ ‑

KIEFEL CJ:   You have described this evidence as corroborative evidence, you say it supports the complainant.

MS JUDD:   Yes.

KIEFEL CJ:   Renders his evidence more credible.

MS JUDD:   More reliable.

KIEFEL CJ:   Does it overcome what needed to be done with respect to the opportunity evidence?

MS JUDD:   I submit it does go into the mix.

KIEFEL CJ:   How?  How, logically?  How, logically, does it do that?

MS JUDD:   Because there is no other explanation on the evidence other than some speculation that could explain how he could ever have known what was in that room unless this offending occurred.

NETTLE J:   Unless he went in there at a time when there was communion wine in there during the two years that he was a choirboy.

KEANE J:   Whether or not the offending occurred.

MS JUDD:   He gave evidence ‑ ‑ ‑

NETTLE J:   If you want Pollitt corroboration, you have to demonstrate something which he could not have known unless the offence occurred.

EDELMAN J:   He gave evidence that he had been on a tour but he was not sure whether the tour had gone into the priests’ sacristy.

MS JUDD:   No, he did not even give evidence that he had been on a tour.  It was put to him that the choirboys had gone on a tour and he said that he did not recall and he did not dispute it but it was only ever put to him and that was the only explanation that the defence ever came up with.  It was not ever put to him that he went inside and it was not ever put to him that he acquired his knowledge of that room by reason of having gone on that tour.  The tour was the only explanation that they came up with and that is the reason that Justice Weinberg ended up removing that as something that the court could have regard to.

KIEFEL CJ:   I see the time, Ms Judd.  I take it that you will be getting through your 10 points in time to allow a reply within the Court hours this afternoon?

MS JUDD:   I still have quite a bit to go and it is very important that I go through some of the material that I have not gone through so I will just have a look over lunch and see what bits can be ‑ ‑ ‑

KIEFEL CJ:   Well, if we are having some difficulty with time, the parties were asked for their estimate, the Court has not been told that further time is required.  If further time is required now is the time to advise the Court.

MS JUDD:   No, I said four hours and ‑ ‑ ‑

KIEFEL CJ:   That will be sufficient for your purposes?

MS JUDD:   ‑ ‑ ‑ and Mr Walker said four hours.  So, we both said four hours.

KIEFEL CJ:   Yes, all right.  Well, if there is a little ‑ ‑ ‑

MS JUDD:   If there is some reason I do not think I can get there let me ‑ ‑ ‑

KIEFEL CJ:   If there is a little extra time that is required this afternoon, we could return earlier from lunch or we could sit a little later but there is a limit, of course, to how long we can sit and meaningfully listen to you.

MS JUDD:   I understand that, yes.  I must say that although I have not stuck to this order I have answered a lot of the questions ‑ ‑ ‑

KIEFEL CJ:   You have answered a lot of it in what you have dealt with ‑ ‑ ‑

MS JUDD:   ‑ ‑ ‑ so do not think that because I am at 2 and 3 I still have all of that to – I do not want you to be concerned about that.

KIEFEL CJ:   It is just that you kept saying you have a lot of evidence to go to.  That is what made me concerned.

MS JUDD:   I do, and the reason I am saying that is that this is a case that is important not to isolate the evidence.  It is important to put it all in the mix.  That is why I keep saying that.  So, I want to make sure that the most pertinent bits that ought go in the mix are identified.

KIEFEL CJ:   I think we understood that.  The Court will adjourn until 2.15.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ:   Yes, Ms Judd.

MS JUDD:   If the Court pleases.  Chief Justice, just to give you a bit of a guide as to where I am headed, I do not want to say any more about 2, the independent assessment.  I will take you to the evidence in relation to 3.  I do not need to say anything more about 4.  I do not need to say anything more about 5.  I do not need to say anything more about 6.

In relation to paragraph 7, I am content to rely on paragraph 14 of our written submissions.  I just note that one of the most important witnesses in that context is Mallinson who was playing the organ, and I will just point out respondent’s further material 286 to 287, also 286 and 291 to 293.  He says he would not have noticed the choirboys detaching from the procession, but he also gives some evidence that I have just pointed to there that talks about how long the music would continue to be played for, even when those particular hymns and their times were put, and he is not prepared to limit that time.  It is a slight point in terms of where it takes us for point 8.  So I do ask that the Court look at that, but I will not use the Court’s time now to do that.

KIEFEL CJ:   I imagine you want to spend a bit of time on matters in paragraph 8.

MS JUDD:   Paragraph 8.  The main ones I want are 3 and 8.  I do not think I need to say any more about 9.  I do want to say a bit about 10.  The main thing I want to address in 10 is the Court of Appeal majority judgment in terms of our submission whereby we say they did not reverse the onus of proof.  That will not take too long but it is an important part.  Then I just have a few bits that I want to respond to from what was said yesterday and a few questions to tidy up.  So that is where I am headed.

KIEFEL CJ:   Thank you, Ms Judd.

MS JUDD:   Starting with the supporting evidence, I have made the general point.  What I want to do now is to take you to the specific evidence.  So in terms of Pell disrobing in the priests’ sacristy, it was not disputed that Pell was disrobing in the priests’ sacristy for this very short period of time and I will not take you to that because it has not been in dispute.  So I will not take you to that evidence but that is mentioned in our written submissions as well.

What I do want to take you to is the evidence that demonstrates that it was not well known and certainly not something that a choirboy would have been privy to, effectively.  So I am just going to take you to the evidence on that point.  First of all, if we could start with Finnigan, the respondent’s further material 340.  He was the choir marshal.  So we say he was a senior participant in the mass and if anyone from the choir knew you would expect it would be the choir marshal.

GORDON J:   Know what?

MS JUDD:   That – so this is the first point about Pell disrobing in the priests’ sacristy, rather than the Archbishop’s sacristy.  So we say one of the pieces of the supporting evidence, or corroborating evidence, is that it just so happened that this complainant, of all the places he picked, he picked a place that Pell was in fact disrobing.  If he was going to make this up, if he was fantasising, the place to pick was the Archbishop’s sacristy – not a place that Pell would not normally be in.  So Finnigan at 340 was asked:

He would go to the sacristy to disrobe as far as you can recall?‑‑‑He’d go to the Archbishop sacristy.

Well, the Archbishop sacristy or if that was not being used the priest sacristy?‑‑‑I don’t know.

You don’t know?‑‑‑My understanding is the Archbishop sacristy was where he robed and disrobed.

There is some evidence, there will be some evidence in relation to whether that was used all the time around those periods?‑‑‑I wouldn’t know.

Potter, at the respondent’s further material 347, line 27:

In your time with Archbishop Pell did he, that is the Archbishop, always use the Archbishop sacristy, or were there occasions when he used the priest sacristy?

Now, Potter – before I go his answer – is the very person that you would expect would know as the sacristan and who gives the evidence about what he did in the priests’ sacristy.  He says:

No, that sacristy was set aside for the person – for the Archbishop’s use only.  He never used the priest sacristy.  Even if we had visiting bishops or cardinals would come in on a rare occasion don’t always dress in the Archbishop sacristy.

Was there ever an occasion because the Archbishop sacristy wasn’t able to be used that he used a room such as the priest sacristy to your recollection?‑‑‑No, not on my – no.

So, as I say, it was not in issue that he was using it, but someone such as Potter is saying that he did not even really know.  Justice Weinberg at paragraph 517, suggests – and this is the core appeal book 333 – that:

Potter agreed that the Priests’ Sacristy, and not the Archbishop’s Sacristy, would have been used on that first Sunday solemn Mass.

EDELMAN J:   Sorry, what page is this again?

MS JUDD:   Page 333 of the core appeal book, paragraph 517.  That is what Justice Weinberg said.  I have taken you to what Potter said at those pages, guessing it was pages perhaps 414 to 415 that Justice Weinberg was relying on.  We say it does not get that high.

GORDON J:   What were those page references, please?

MS JUDD:   Pages 414 to 415.  So if you start at 414, this is now cross‑examination by Mr Richter, line 12:

So far as the Archbishop’s sacristy is concerned, we’re going to have a witness who says that the Archbishop’s sacristy also underwent some renovations –

The answer is yes, so he recalls the renovations.  Then over the page on 415, Mr Richter says:

The Archbishop’s sacristy was not being used by the Archbishop for vesting on that occasion, but the door between the Archbishop’s sacristy and the priest sacristy would still be open, would it not?---Yes.

Then his Honour picks him up and says that it is two questions and then really just goes on to say:

Assume that there are renovations going on –

and so forth.  So I think that that is as high as it gets in terms of what Justice Weinberg said, and our submission is that what I read out earlier really was what Potter was saying about - certainly his memory of where the Archbishop robed, including in that time.

EDELMAN J:   There was no evidence that A knew which of the rooms would be the priests’ and which would be the Archbishop’s sacristy, was there?

MS JUDD:   No, no, there is not.  He did not even ‑ ‑ ‑

EDELMAN J:   So when you say that this is evidence that negatives any possibility, or negatives the likelihood of fabrication, it really, if the story were to be told, that the events occurred in a sacristy, it would have to be one of those two rooms, would it not?

MS JUDD:   Well, there is no evidence that – let me go back a step.  The complainant, so A, does not actually give a name.  He does not so much call it the priests’ sacristy, or the Archbishop’s sacristy.  He says it happens in a room – he gives his statement - and when he is taken there - and so he describes the layout of the room before he is taken there, there is no issue about that.  Then when he goes there, he comes and he identifies that room but he is not identifying it by name as such, he is just saying that is where it happened.  Yes, there are limitations in terms of what your Honour Justice Edelman says.  It could not stand on its own as a killer point, but we say certainly the fact that he identified the correct room is a factor that is ‑ ‑ ‑ 

EDELMAN J:   But at its highest ‑ ‑ ‑ 

MS JUDD:   That adds to the reliability of what he is saying.

EDELMAN J:   At its highest it puts A in that room, but does not put the appellant in the room. 

MS JUDD:   Well, he is – we say the second point is putting A in that room – the second piece of what we have called supporting evidence, or corroborating evidence.  But that, we say, can be used to have Pell in the room with him, because Pell would otherwise be using the other room. 

BELL J:   The significance of it, from the prosecution point of view, was the improbability of him nominating the priests’ sacristy in circumstances where by sheer chance that was the room that the Archbishop was then using. 

MS JUDD:   Yes, I cannot put it any higher than that.  It is something that we say goes into the mix.  The other evidence I want to take you to on this point again is Potter - Potter at 431, line 6 or line 7:

from my personal experience I have never experienced anyone in the choir going into that area in my whole period there.  And I also had a son in the choir for five years. 

That is also important in terms of the next point, and where else that this choirboy could have got his knowledge from.  Parissi, 587 to 588, 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 think I might have taken you to that earlier, but going over to 588, also important:

You could basically see the inside of the sacristy if the doors were fully open. 

What about the far left of the sacristy level with the doorway?‑‑‑No.

And you yourself you said you had never been into the sacristies, that is inside them, is that right?‑‑‑That’s correct, never. 

La Greca, 742 ‑ ‑ ‑ 

NETTLE J:   Because they were off limits to choristers?

MS JUDD:   Correct, yes, and also there is very limited opportunity to go in there because there is the evidence of them always being locked, except for those very short periods.  Then we go to La Greca, 742.  He is shown a photograph:

The doorway to the left in Photo 9, do you know what that led to?‑‑‑I think it led to where the altar boys used to robe for service that – on Sunday mornings. 

Do you know if that room was off‑limits is my first question?‑‑‑It was off‑limits. 

Then, going down to line 19:

Was that a room that you were able to go into and have a look around?‑‑‑No.

Mayes at page 725 and 726, cross‑examination from Mr Richter. 

Mr Mayes, those rooms that were just shown to you, the one called “sacristy”, that was off limit for choir members, is that right?‑‑‑That's correct.

Then it continues on over the page:

But you would see priests hanging around there?‑‑‑They weren’t hanging around, I’d either see priests inside the room or leaving it.

You could see – I mean, if you were walking along the right‑hand wall for example you could see sort of into the room probably halfway through the room, couldn’t you?‑‑‑No.

How much could you see?‑‑‑To be fair both of those rooms I marked on the map are a total mystery to me.

HIS HONOUR:   They are a total what?‑‑‑A total mystery to me.

MR RICHTER:  That’s because you never went in them?‑‑‑You also really couldn’t see into the rooms.  The way the doors were left open or what was going on in there you didn’t have very good visibility to what was happening.

Now, I do want to take you to just a couple of photographs.  We have included in the material both the jury walk‑through and the video of A going through that area so, as I say, he had already made his statement and given his description.  He is then taken through.  When you look at that material, you will actually see that it is impossible – and the depiction is pretty good – you will see that it is impossible to see inside that room from the outside unless you walk all the way in and then around to the left.  So that material is there and I would ask that the Court look at that material.

What I will do, though, for today’s purposes is take you to the respondent’s further material at 208.  So 208 is the corridor and it is looking - as you see 208 it is actually showing the doors of the priest sacristy.  It is not in the photo, but if you went further to the left of that photo, that is where the entrance to the Archbishop’s sacristy would be and there is a doorway between.  But that is looking into that room with that one door open.

Page 209 is inside the priest sacristy and it is looking from that doorway that you see in 208.  Now, 210 is where you are actually in the room.  The doorway to the left is that doorway that I have been showing you.  You have then got the sink area that at the time was a wardrobe area but was also not in wood but was in something the witnesses agreed would look like a wood – to a kid it was vinyl but had the appearance of a wood grain and I can take you to that, and will.

Importantly, next ‑ and so that was there, but it was a robe, still, with those type of doors.  The wine itself, that white door there is the safe or the vault, and that is where the witnesses say the wine was normally kept locked in, and there were some shelves and cupboard area and a special sink there that was also ‑ there is some conflict about whether or not there was also a fridge in there at that time, between Potter and Portelli, but in any event it was in that little alcove area. 

Now, just staying on that photo, just at the very right of the page, not the drawers that are there but just behind those drawers, that is the door that leads into the Archbishop’s sacristy.  Then going to page 211, that is just another view - you do not actually see that alcove area so much, but over at 212 you do see a photograph of the alcove area as it is today, not as it was back then, but still in terms of being a separate area, that is in fact how it was, just the layout inside was slightly different because that is where the wine was at that particular time - the wine now in a different spot. 

If I could just jump back to page 205.  This is only to do with incident 1, but he marks where it is that he was standing.  You will see his initial there and then you will see the “B” - or the other boy, and you will see his initial there.  I am being careful about that because I know that is a redacted, that is in the redacted book, but that showed that that is where he says they were standing at the time, where they were positioned at the time that that offending took place.

Now, just in terms of the evidence to do with the layout and how he got that so right, if we could start with page 37 of the respondent’s further material, and I am going to do this quicker than what I was otherwise going to do, but if I just mainly focus on 37, line 17:

[REDACTED 2:38:10-2:39:03]

So there is other material but that is the main bit in terms he describes it.  The important bit is he is in that room at a time when he has to be able to get into that room, so it has to be unlocked, and he has to be in that room for long enough to be able to poke around in that cupboard to see the wine, wine that is normally also locked away.

Then if we go on to why I say the description is so good and why the opportunities to be in that room are so limited, if we go to Portelli at 482 of the respondent’s further material.

GORDON J:   Is this still under paragraph 3?

MS JUDD:   Yes.  All of what Portelli says from 482 to 486 I was going to take you to and I will just pull out some highlights, given the time.  Line 10, or 11 to 12, the sacramental wine was stored:

Inside the vault in the priest sacristy.

Line 20:

If one was walking about the sacristy corridors, would one be able to view that area where the vault is by simply walking along the corridor?‑‑‑No.

Then he talks about it being:

stored in boxes on the ground ‑ on the floor of the vault.

And that’s inside that ‑ ‑ ‑?‑‑‑White door.

So not left out; stored in there.

GAGELER J:   Did the complainant mention a white door?

MS JUDD:   No, he did not mention a white door.  He mentioned – he did not see it.  He did not see it inside the white door – he did not see it in the vault.  When he saw it he said it was out.  The white door you cannot get through.  It is the vault.  It is locked.  He says he saw the wine in that alcove area when he was poking around in there.

GORDON J:   In the cupboard.

MS JUDD:   In the cupboard, yes.

BELL J:   The alcove at that time was slightly differently configured, was it?  It now appears to have some open shelving.

MS JUDD:    The inside was slightly different.

BELL J:    Yes.

MS JUDD:    It was still the same proportions and it was still separated out.

BELL J:    Yes.

MS JUDD:    But the inside, yes, was different and that was a point that was made mention of in terms of his being ‑ ‑ ‑

BELL J:   But he was describing that within that alcove the wine was on a bench or a surface.

MS JUDD:   Correct, correct.

BELL J:   Yes.

MS JUDD:   Yes.  He is not saying he found it in the vault, or he has found it locked away.  He is saying he gets into that alcove area, and it is there for him to see.  In terms of Portelli’s evidence continuing, 483, line 16:

Would there be a sink?‑‑‑There was a – an odd little arrangement with a – there was a bench, it was metal from memory.  There was a small sink about 300 mil square.  A single tap.  Above there was a shelf and on that shelf was a small bar fridge with a woodgrain front.  The wine would be poured usually there and then returned into the – into the vault.

Line 26 there is reference to the sacrarium or the sink.  Jumping over to 484, he says – he is asked, line 6:

was the bottle always put back into the vault when not in use –

and he says – he talks about if there was a plague of ants, it might be in the fridge, but we would then place it – line 14 is probably the important one:

Might it ever sit on that ledge, not going back into the fridge but on the ledge adjacent to the fridge?‑‑‑If it did it wouldn’t be for very long.

Then 485, again, I just draw your attention to his description, lines 20 to 27, right down over to 486.  Given time, I am not going to read it all out.

GAGELER J:   What are the particular features of the matching of Portelli’s evidence with that of the complainant that you want us to focus on?

MS JUDD:   Basically that it just so happens that this boy describes that alcove area in a way that – so he picks the area where the wine is, so that is an important one.  It is not anywhere else in that room, it is in that very room, Portelli agrees.  He describes it - he describes that storage kitchenette area – that was certainly there.  Yes, there had been some changes, but there was a recognition about that.  He describes the wood, both outside and inside.

NETTLE J:   You, as might be taken to have established in spades that he was in that room and had some wine before he gave this evidence.  But what is there about this evidence that puts him in that room at the time at which it is alleged the offence was committed?

MS JUDD:   Because the room was always locked and the choirboys were not allowed in there.  If he got into this room, he had to get into it at a time when it was unlocked.

NETTLE J:   I accept – I plainly understand that.  But I assume that there was a mass every other Sunday at least, for the two years that the man was a choirboy?

MS JUDD:   Yes.  But, see, part of the argument is that a choirboy is not going to be able to detach and get into that room, so it to some extent accommodates that argument.  Part of the argument is that there is a hive of activity in that area after mass.  Now, to the extent that that means that a choirboy is going to be detected getting into that room, it somehow accommodates some of that evidence.

A lot of this opportunity evidence is really put on the basis that a choirboy just would not be able to be in that area at that particular time.  He would be seen; he would be noticed.

NETTLE J:   I see.  So it demonstrates that the jury are entitled to conclude that he was in that room and drank wine, as he said, having broken away from the procession?

MS JUDD:   Yes, but at a time when ‑ ‑ ‑

NETTLE J:   The sacristy had been unlocked following the end of the mass, or on some other occasion at which it might have been unlocked.

MS JUDD:   Yes, but also at a time when the other opportunity evidence, not so much on the steps, but the other opportunity evidence about the hive of activity, to some extent, undermines some of that.  If he can get in there at a time after mass, when there is very limited opportunity, it does somehow have an influence in relation to that.  But, again, he is describing this room in great detail, when the other choirboys do not ever get into that room.

KIEFEL CJ:   Well, that shows he was there at some point in time.

MS JUDD:   Yes, but ‑ ‑ ‑

KIEFEL CJ:   Does it go any further than that?

MS JUDD:   I submit it does.

KIEFEL CJ:   How?

MS JUDD:   I submit he is in that room and he is describing it in such detail that, if something has happened when he is in that room it is indelibly marked on his memory.  This is not just a quick look in this room.  Something significant has happened in that room.  But in terms of being in that room the defence essentially was that he acquired his knowledge of that room by reason of perhaps being on a tour and this witness gave positive evidence that he had not been in that room before.

So we talk about the overlap between credibility and reliability.  If you are accepting the complainant as a credible witness then it is open, we say, to the jury to conclude, looking at all of the evidence, beyond reasonable doubt that his evidence that he gave about acquiring his knowledge occurred on that occasion.  It was never ever put to him that he was in that room on any other occasion, so he never ever – or drinking wine on any of those other occasions.  It was never ever put.  What was put was the questions about a tour, which I discussed with Justice Edelman before lunch.

Can I go to Potter at page 358.  I am not going to take you to all of this but, given the time, I would ask you to read between 358 and 362.  The essential points he makes ‑ he says in 1996 the fridge was not there.  That does not matter so much because the complainant did not say anything about a fridge but it just puts him at variance with Portelli for the relevant time.  He says when he filled the cruets he put the wine back in the safe – that was 362.  Also at 362 he concedes there were rare occasions when the wine was left on the shelf, but it is important to read all of that material.  That was all I was going to say for point 3. 

I can now jump to point 8.  We say the evidence is not so precise as to assign specific timeframes for any of the matters we have listed there.  First of all, the route of A after mass, there is some suggestion in the applicant’s submissions that the jury walk‑through exhibit X put a time ‑ ‑ ‑

KIEFEL CJ:   Ms Judd, when do you say that the potential time for offending, the “window of opportunity”, so to speak, when could that have commenced?  What is the transposition there?

MS JUDD:   The commencement and the conclusion, the evidence is intermingled.  The Crown position was always that it occurred after the altar boys had bowed to the crucifix and then before the hive of activity.  That was always the way the Crown put its case.

KIEFEL CJ:   Is that how they put it at trial?

MS JUDD:   Yes, that is how they put it at trial and I can take you to that, if you would like.

KIEFEL CJ:   How do you set those points in time, in particular the hive of activity?

MS JUDD:   You cannot be precise about it.  Potter at 380 to 381 is where we start.

GORDON J:   Just so I am clear, Ms Judd, the time both for the commencement and the end of this period of time for the offending, which is what the Chief Justice is asking you about, you said it occurred after the altar servers had bowed to the crucifix in the priests’ sanctuary.

MS JUDD:    Yes.

GORDON J:   But before the hive of activity.

MS JUDD:    Yes.

GORDON J:   What do you say is the “hive of activity”, which I think is a phrase that Cox in his evidence first used?

MS JUDD:   That is the clearing of the sanctuary.  So what we say happened was, after the bowing to the crucifix and the procession finished ‑ ‑ ‑

GORDON J:   The procession finishes, they bow to the crucifix and that is the end of the formal procession, on the evidence.

MS JUDD:    Correct.

GORDON J:   Yes.

MS JUDD:   Now, at some point, Potter and McGlone are in what they call – they are guarding the sanctuary area and they say they allow people to have ‑ ‑ ‑

NETTLE J:   Five to six minutes?

MS JUDD:   Well, I am really going to go in hard on this and say that six minutes is just not something that you can be definite about because what they say is that the period – there is a period of a quiet interlude.  Now, how long that is and when it starts is very much dependent upon how long it takes for the cathedral to be cleared.  I am going to take you to that in quite some detail because they say that they allow people to come forward and have their private prayer time and they do not want to interrupt them and walk in front of them and start the clearing process until that process has actually been completed – that the parishioners have had that period of time.  Now, Potter does talk about it being a period of six or seven minutes.  But it is accepted ‑ ‑ ‑

NETTLE J:   I thought he said five to six.

MS JUDD:   Five to six minutes.  But it was not – and this is why we say the clockwork point because how long, particularly on a day when you have so many people there, it would take a lot longer to walk out of that cathedral.  So to give people their private prayer time is going to depend on how long it is going to take to clear everyone out of that cathedral.  Now, McGlone gives some evidence.  He says on one of those two occasions he walks with the procession, he goes around and he sees the – so he bows to the crucifix.  He then gets out of his robe ‑ ‑ ‑

GORDON J:   No, he stays robed, goes with his mother.

MS JUDD:   He stays robed, I beg your pardon.  Stays robed, goes back into the cathedral to see his mother, and I think he said his mother was about – she is walking out ‑ ‑ ‑

NETTLE J:   Is a third of the way down the nave.

MS JUDD:   Yes, and he talks about, I will come to it, how full the cathedral still was.  So I do not think you can be so precise about that timing because it has to allow people that private prayer time.  Yes, it might have usually only taken six minutes.

NETTLE J:   But you went to the jury on the basis that the five to six minutes which he said he allowed was the window of opportunity in which the offending could have occurred.

MS JUDD:   Yes.

GORDON J:   I just want to ask one more question about that.

MS JUDD:   But not necessarily confining it to five to six minutes.

GORDON J:   But let us be clear about this.  At paragraph 300, the majority concluded that:

it was open to the jury to find that the assaults took place in the 5‑6 minutes of private prayer time –

So you do not seek to maintain that position, that is, you do not seek to adopt what the majority found?

MS JUDD:   I do, except that what I do want to say ‑ ‑ ‑

GORDON J:   I just thought you said you did not tie yourself to the five to six minutes?

MS JUDD:   I am not – no, I do not want to tie myself to the five to six minutes.  We say yes, that is open.  But also, what I want to make very clear is it is also when that starts.  So you might have your five to six minutes, but there might be the clearing out of the cathedral before that five to six minutes ‑ ‑ ‑

GAGELER J:   When you say clearing out, are you referring to Potter’s evidence at 380 or are you referring to something else?

MS JUDD:   Yes, and I was going to take you to it and I think it is probably easier that I just take you ‑ ‑ ‑

GAGELER J:   He is referring to the procession clearing out.

MS JUDD:   Yes, the procession, I beg your pardon. 

GAGELER J:   Does he mean the congregation?  Are you drawing a distinction?

MS JUDD:   Okay, no.  He is asked the question:

once mass finishes and the procession commences how long is it before you first attend the sanctuary to start doing what you’ve just told us?‑‑‑Could be five minutes.  I make sure that the procession’s cleared from the cathedral first.  That the whole procession’s moved through.  And people will be walking up to the sanctuary area kneeling, so we didn’t disturb them for that five or six minutes –

So a period of time:

we gave them their private time and then we would move in after that.

So although the question is linked to once mass finishes and the procession commences, the answer does not seem to be connected to the procession commencing because he is talking about the procession clearing from the cathedral first, and then there being that period.  Now, over the page at 381, line 8, he says:

Allowing people the privacy of prayer.  A personal time, rather than myself cutting in front of the serbinum, so it was giving that privacy, if I can use that term, in their own spiritual way of thinking . . . 

I’d be sometimes at the front of the cathedral –

Line 20:

I was always near the sanctuary area ‑ ‑ ‑

KIEFEL CJ:   As I understand your position, you say it might be more than five to six minutes now, do you?

MS JUDD:   I say that this ‑ ‑ ‑

KIEFEL CJ:   Is that your position, Ms Judd? 

MS JUDD:   Yes, but I say it still fits with only the five or six minutes.

KIEFEL CJ:   What is the evidence?

MS JUDD:   I go to Mallinson at 266.  So Mallinson at 266, line 26, talks about Max Potter’s duties would commence:

after a suitable interval – what’s the word – decorum I suppose would be the right word – he would go on to the main sanctuary ‑ ‑ ‑

KIEFEL CJ:   Ms Judd, was it put to any witness that it could be more than five to six minutes?

MS JUDD:   Well, it is put that going over to the ‑ ‑ ‑

KIEFEL CJ:   The question is not a difficult one, Ms Judd.  Was it put to any witness that it could be more than five to six minutes?

MS JUDD:   It was put more in an open way to explore it rather than to put it ‑ ‑ ‑

KIEFEL CJ:   I take it the answer to my question is no?

MS JUDD:   No, but there was never any leave to cross‑examine, so it was explored in an open ‑ ‑ ‑

KIEFEL CJ:   But in the passages you have just taken us to, the prosecutor adopts the evidence of five to six minutes and goes with it.

MS JUDD:   Yes, but can I just take you to a little bit more of the material?  So Mallinson says at line 14 on 267:

It’s difficult to say.  I mean it depends on the circumstances, how many people are in the cathedral, but fairly soon after the clergy have left the sanctuary.

Then there is the evidence ‑ ‑ ‑

KIEFEL CJ:   He is talking an extension beyond a minute and a half or two minutes.

MS JUDD:   He says – he is talking about how long it takes to clear the cathedral and at 274 he talks about, line 12:

The Sunday mass . . . was the most popular mass of the week . . . 

And we’re talking about many, many people?‑‑‑Yes.

All right.  Hundreds.

Then you link that in with what McGlone said at 644 to 647, which is how long it might take you.

KIEFEL CJ:   Was this – I will let you get back to the evidence you are taking us through – but was this view of the evidence put in argument in the Court of Appeal or is it something that has come to mind more recently?

MS JUDD:   I am only putting this, and I think it was only ever put, as high as “you just cannot be precise about the times”.  So yes, there is evidence about the six to seven minutes and, yes ‑ ‑ ‑ 

KIEFEL CJ:   But the Court of Appeal refers to five to six minutes.  What we are concerned with is you seem to be saying that there is another view open. 

MS JUDD:   What I am saying is on the whole of – when you look at the whole of the evidence ‑ ‑ ‑ 

KIEFEL CJ:   You say the Court of Appeal should have perhaps allowed for a bit more, or qualified it by saying five to six minutes, or perhaps a bit more.

MS JUDD:   No, if the Court of Appeal say it was open to the jury for that offending to have occurred in that period of time, then we can live with that in terms of that is a finding that is in the prosecution’s favour. 

KIEFEL CJ:   Well, I understand that but the Court would just like to know what your argument is, what the Director of Public Prosecutions is saying is your argument, whether it is limited to what the Court of Appeal found or whether it is something else. 

MS JUDD:   I am recognising that insofar as times were put on that period of a quiet interlude it is the five to six minutes, but with all times they are approximate times, and it was recognised that the timing – it was not a precise five to six minutes, but it depended upon how many people were in there and how long it took for the procession.  So all I am saying is when people nominate times, five to six minutes or whatever that means, it does not mean five to six minutes like clockwork. 

KIEFEL CJ:   What does that mean?

MS JUDD:   It means there is a period of time ‑ ‑ ‑ 

KIEFEL CJ:   It could be seconds more or minutes more.  We just do not know. 

MS JUDD:   Correct, correct, and five to six minutes is certainly enough. 

KIEFEL CJ:   That is usually why prosecutors try to tie these important issues down fairly tightly.

MS JUDD:   It is an important issue, your Honour, but it is an important issue in terms of no one is standing there with a clock ‑ ‑ ‑ 

MS JUDD:   Well, obviously.

KIEFEL CJ:   Counting five to six minutes ‑ ‑ ‑ 

MS JUDD:   It is really not in any ‑ ‑ ‑ 

KIEFEL CJ:   In any event, Ms Judd, I interrupted you; you wanted to finish taking us to the evidence which supports. 

MS JUDD:   Well, the discussion I had with Justice Nettle is that McGlone’s evidence about meeting his mother and how full the cathedral was, that is at 644 and 647.  I am conscious of the time so I am not going to take you to it in detail.

BELL J:   Ms Judd, the position is that - do you accept that the private prayer time commenced as the procession was making its way down the nave?

MS JUDD:   No. 

BELL J:   When did the private time commence – when the procession had fully exited the cathedral?

MS JUDD:    I say there is no precise time as to when – the evidence does not indicate when that started. 

BELL J:   Well, when does the prosecution – in the way the case was run, did the prosecution put that the private time commenced.  It is not a question of how long it was, but when did it commence? 

GORDON J:   What about Potter’s evidence?  Do you rely on him?

MS JUDD:   Yes, of course.  His evidence ‑ ‑ ‑

NETTLE J:   Potter says that he did immediately – five to six minutes after it had commenced – that is to say, the procession.

KEANE J:   The evidence is of people coming up, to have their private time, as the others are leaving the cathedral.  That is the natural reading of the evidence.  They are not sitting there waiting for the procession to assemble or to set off, much less to leave the cathedral.  They are moving up as the people in the procession are gathering and moving out.

MS JUDD:   Yes, but their ability to move up depends upon the procession having cleared for them to be able to move forward, no doubt.

KEANE J:   In the middle aisle.

MS JUDD:   Well, yes, but there was also evidence of people not just coming up in the middle; there was also evidence of people exiting the cathedral from other paths, particularly when there were so many there.

GORDON J:   The difficulty is that Potter’s evidence at 380 of the respondent’s further materials, from line 17 and over the page, which identifies and discusses this five to six minutes, recognises, as I understand it – and I put two propositions to you – one is that it is referable to the people kneeling and coming forward to have private prayer time but, second, he is actually doing some clearing up.  He is just making sure he is not offending those that are kneeling.

MS JUDD:   I cannot take it any further.  I have made the point.  The way it went in front of the jury was yes, there was reference to five or six minutes, but it is in this interval in ritualistic procedure between (a) unlocking of the priests’ sacristy door and the bowing to the crucifix, which we heard about, and (b) the commencement of the ferrying of the sacred vessels is when the incident, according to A, took place and they entered the room and shortly thereafter ‑ ‑ ‑

EDELMAN J:   Ms Judd, can I just understand this.  Just in terms of your sequence, you say that the events occurred between the altar servers bowing to the crucifix and the hive of activity beginning.  What about the period when the priests were disrobing?

MS JUDD:   Okay.  So Finnigan talks about seeing the hive of activity after – so remember the boys go in with Finnigan and there is a period of 10 or 15 minutes, different ones have - he observes this hive of activity after the boys have been dismissed.  In terms of the – and I will just give you the page numbers – 341, 343 – priests, I think that yes, if there were other priests they would go into the priests’ sacristy or they could go into the priests’ sacristy to disrobe.  But there was no evidence as to when that was.  The quickest way I can do that in the time I have is perhaps to take you to Justice Weinberg at 1128.

NETTLE J:   But did not Thomas say that the other priests processed in with the procession.  They were at the back of ‑ ‑ ‑

MS JUDD:   There is conflicting evidence about whether there were other priests on all the days or those days, but not necessarily altar ‑ ‑ ‑

EDELMAN J:   Mr Potter’s evidence was that there would be between two and 20 priests.

MS JUDD:   Yes.  But McGlone, who talks about the bowing to the crucifix, so the end of the procession, does not have priests with him.  He talks about ‑ ‑ ‑

NETTLE J:   He perhaps obviously could not remember it.  But Thomas is pretty clear that priests came within us at the back of the procession.

MS JUDD:   But that does not – that does not mean that they were in that particular room at that time; there is just no evidence of that.  Weinberg at 1128 - it would take me a bit of time to go through it all.  Paragraph 1128 was dealing with the animation point.  But what Justice Weinberg did say is that:

The animation bore little resemblance to the actual state of the evidence but rather presented a distorted picture of that evidence . . . It was tendentious in the extreme.  For example, it showed the Priests’ Sacristy, with the complainant and the other boy in the room, in company with a large number of concelebrant priests.  Self‑evidently, there was no evidence of any kind that this particular scenario had occurred.

EDELMAN J:   I was not asking about that scenario.  I was asking about the evidence that priests disrobed and that the priests’ sacristy was the place where the priests disrobed and ‑ ‑ ‑

MS JUDD:   There was evidence of that.

EDELMAN J:   ‑ ‑ ‑ the evidence that there were, on a Sunday solemn mass, between two and 20 priests that would process. 

MS JUDD:   I accept that if there were priests – that there was evidence that other priests would disrobe.  But in terms of the timing of the disrobing, I do not accept that, and in terms of where the priests might have been, there was quite a bit of conflict about whether or not they would be at the end of the procession or not.  As I say, McGlone, who ended the procession, remembered a specific occasion on one of those two, does not have priests with him in that procession at that time.  So it is just not – it is not uniform, I think is probably the best way I can put that.

BELL J:   Was the evidence that the altar servers were towards the back of the procession, or at the front of the procession?

MS JUDD:   They were after the choristers.

BELL J:   Yes.

NETTLE J:   They were both, were they not?  There were ones up front and ones ‑ ‑ ‑

MS JUDD:   Sorry, there was one that was – yes, there was one leading up front, correct.

BELL J:   You had a leading altar server, then you had the choir arranged sopranos backwards.

MS JUDD:   Correct.

BELL J:   Then you had the altar servers, then you had the priests?

MS JUDD:   Yes.

BELL J:   And then the Archbishop?

MS JUDD:   Yes.

BELL J:   Can I come back to the matter – I just seek to understand how the matter was put.  Was it said that the evidence supported the view that the private prayer time commenced while the procession was exiting the cathedral, that is, while some of the persons participating in the procession were still inside the cathedral, that one had the period of private prayer?

MS JUDD:   It was put that there was a period of private prayer and it occurred at some point after the procession in the sense of the ‑ ‑ ‑

NETTLE J:   “Commences” – that is what he said.  Once the mass finishes and the procession commences.

MS JUDD:   The question says “commences”, but when you read that answer I submit that it is not necessarily tied to when the procession commences.

BELL J:   Was there any evidence other than the evidence that when the mass is over and the procession commences, the time began for the congregants to come up and say private prayer?  Was there any evidence other than that?

MS JUDD:   No, it was not to that effect.  What was said was that it could not have occurred until after the altar boys had bowed to the cross and that part of the procession had concluded and before the hive of activity started.

BELL J:   Ms Judd, my question is not directed to the finding of the Court of Appeal about when the offence occurred.  My question is directed to when it is said the period of private prayer time began.  Accepting that it is possible to not express with certainty the number of minutes, the best estimate was five or six minutes of private prayer time and on Mr Potter’s evidence, that commenced at the end of the mass and when the procession commenced.

Then one has during that time the procession making its way around and the altar servers at the end of the procession coming into the priests’ sacristy, bowing to the cross and then moving out and going about their business of clearing the sanctuary.  Is that not open?

MS JUDD:   If you read Mallinson’s evidence – and I say it ought not be read that way, but if I am not persuasive in convincing you of this – as it being the time he talks about as a precise time and it starting at the commencement of the mass, then that is the evidence.  There is nothing else that I can put to indicate precisely when it was or even approximately when it was that that time started.

BELL J:   On the evidence, once the altar servers bowed to the crucifix, on their account where did they go?

MS JUDD:   There was evidence that they left that room.  There was evidence of McGlone that they went to what they called the “worker sacristy” to unrobe.  That was a different sacristy.  That was the workers’ room or the candle room.  Let me take you to McGlone,

BELL J:   Is this going back to the position that the prosecution disavowed at trial?

MS JUDD:   He incorrectly disavowed that there was no evidence, he was very generous in that, but the ‑ and I can take you to all of that, but let me take you to McGlone.  Certainly, there is no evidence that they were there for five to six minutes ‑ ‑ ‑

BELL J:   Was the evidence ‑ ‑ ‑

MS JUDD:   ‑ ‑ ‑ but they left ‑ certainly, the evidence was that they left that room.

BELL J:   Was the evidence that they went about their duties clearing the sacred vessels after they had removed their vestments?

MS JUDD:   Yes.

BELL J:   Yes, thank you.

MS JUDD:   Let me take you to McGlone.  I think it is page 646.  Lines 8 and 9 was when he said he does not:

recall there being any priests with us.

And then, going back, line 2, 3, 4, 5 is talking about when they finished, when they bowed to the crucifix, and then line 10:

When you left that room you left the door open or closed?‑‑‑It’s like the green room in an opera house, it’s open.  That’s where all the sacred vessels go.  So in order to clean up the sanctuary the servers are moving back and forth into that room.

So he says the door was left open, so he left the room, if it was a different ‑ ‑ ‑

BELL J:   Ms Judd, I think it was Mr McGlone’s evidence that he was still in his soutane when he met his mother?

MS JUDD:   Yes, it was ‑ sorry, it is Potter, I beg your pardon.

BELL J:   Just to then ‑ ‑ ‑

MS JUDD:   It was not McGlone, McGlone said he left the room, but Potter said ‑ ‑ ‑

BELL J:   The matter I am taking up with you, as one reads Mr McGlone’s evidence, one may be left with the impression that, had he assisted the other altar servers in the usual way, that is, had his mother not been present, he would have been cleaning away sacred vessels from the sanctuary, still wearing his soutane.  That is, he would not ‑ ‑ ‑

MS JUDD:   I do not think he was helping on that occasion.

BELL J:   No, he was not helping on that day.  Ms Judd, the point that I am trying to direct your attention to is whether or not, in the usual course, after the altar servers bowed to the crucifix, is the evidence that they went about their duties of removing the sacred vessels and taking them to the priests’ sacristy whilst they were still robed, or do you say they went off and changed into civilian clothing before they removed the sacred vessels?

MS JUDD:   Yes, so it is Potter at page 426, lines 5 to 7, so after they:

would bow to the cross, and what would happen then?‑‑‑They would go into the workshops or the sacristies and disrobe.

And, then, following all that way down the page, line 27:

Then they would go and follow directions as to what they should do with the various vessels –

Sorry to take so long to get there.  If I ‑ ‑ ‑ 

NETTLE J:   Did you say 426. 

MS JUDD:   Page 426, yes. 

NETTLE J:   Thank you.

MS JUDD:   I think, given the time, I had better jump to our point 10. 

NETTLE J:   Have we finished with 8?

MS JUDD:   Sorry?

NETTLE J:   Have we finished with 8?

MS JUDD:   I am just conscious of the time.  We say a bit more about this in our written submissions.

NETTLE J:   Well, can I just understand this.  The period that was left to the jury by Crown Prosecutor was the five to six minutes of private prayer time, which Potter said he allowed in order that people could pray before he started making a noise cleaning up. 

MS JUDD:   Yes, your Honour. 

NETTLE J:   You say, now, that it was open to the jury to find that there was a different or at least greater period of time in which the offending could have occurred, do you?

MS JUDD:   I am just not linking ‑ what I am doing is I am not necessary linking that five to six times to exactly the commencement of when the procession commences.  What I am saying is that there is variable in there.  That is not different to how the Crown put its case before the jury. 

NETTLE J:   So there might have been some significant period of time before the five to six minute period began.  Is that the way it is put?

MS JUDD:   What I accept is that if you look at the evidence of Mallinson and you read that as putting a time, as being the commencement of the procession, then I cannot take it any further than that. 

NETTLE J:   And Potter’s evidence too.

MS JUDD:   Sorry, I beg your pardon, Potter’s evidence, not Mallinson. 

GORDON J:   You meant Potter.

MS JUDD:   I did mean Potter, yes.  So if you are not with me on that, there is nothing else that I can point to.  I just say that evidence was not so precise.  The answer, I say, did not necessarily mean it was starting right at that point in time.  I suppose the only other point I want to make about this, which I did not do, is just the period of the offending.  I mean, it was conceded that it was five to six minutes, but again on this point it is just worth reading exactly what was said, because it was barely a minute, barely this and barely that.  I will not take you to it all, but I would ask you to read the respondents further material, page 41, and 43 to 44. 

NETTLE J:   It did, even on the complainant’s own evidence, amount to about five to six minutes.  One, one and a half.  One, one and a half.  Two.

MS JUDD:   If you add it up like that, yes.

NETTLE J:   Plus the time taken to put their clothes back on at the end, as he said.  Plus the time to poke around and have some wine beforehand.  So you are well over five to six minutes.  You are up there seven to eight. 

MS JUDD:   I submit not, your Honour, but if that is the view you take then ‑ ‑ ‑ 

NETTLE J:   Because ‑ well, why do you say that?

MS JUDD:   Well, because of the ‑ what I say, is when you look at what is open on the evidence, you have got the offending taking place in this period of time.  The wine is ‑ obviously, they go into the room first.  They say they are not in the room for all that long, and he talks about barely a minute here and barely a minute there.  Yes, it does add up to roughly five or six minutes, again it is not precise.  But it gets back to – you have got evidence about this procession continuing.  You have got an acknowledgement that you cannot be precise about the commencement, I say, as to when that five to six minutes starts. 

You might also, just in that context, the only other piece of evidence that I can perhaps take you to on this is also the evidence of Mallinson rather than Potter.  And it does not directly answer the question but there is also a recognition in terms of – just in terms of how long things take, at 268, about the fact that Potter might have – Potter:

was suddenly called by one of the clergy, by the Dean or the Archbishop or whoever –

So that is line 20 to 26.  So he is talking about the period of clearing at that point.  But he is acknowledging that things happen on these days that might otherwise take Potter away from the task at hand.  And so if he is called away, someone wants to talk to Potter beforehand, or during, he goes into that mix.  And Potter is the one that gives the directions to the altar servers as to what to do.

BELL J:   What were those altar servers doing after they had bowed to the crucifix, gone and taken their robes off?  What were they doing before they started clearing the sanctuary of the sacred vessels?

MS JUDD:   I am told – I do not think it is clear on that.  I do not think I can take it any further than what I have read out, what Potter said, I am sorry.

BELL J:   On any view of the Crown case, it was that the altar servers came into the priests’ sacristy in order, they bowed to the cross, and that for them was the completion of the procession.

MS JUDD:   Yes.

BELL J:   Then they had a remaining duty, which was to clear the sacred vessels from the sanctuary and take them to the priests’ sacristy.

MS JUDD:   Yes.

BELL J:   On this theory of the case, between them bowing to the crucifix and going and changing, there is some five to six minutes in which the complainant and the other young man go into the room, they poke around, they swig the wine, the Archbishop comes in, there is the confrontation and the offence.  All of that happening and the prosecution is unable to posit a theory of what the altar servers were doing.

MS JUDD:    The prosecution case was that whether they are robing or unrobing ‑ and I am told there is some conflicting evidence on whether they robe or they unrobe before they clear – the prosecution case was they do not come back into that room, the relevant room, until they are carrying with them the vessels and the items.

EDELMAN J:   By the time they came back in, as I understand from Mr Potter’s evidence, the priests will have disrobed in that room – that is at 427.

MS JUDD:    Not necessarily because there is not evidence about when the priests disrobed. 

EDELMAN J:   The question that is asked at 427 was:

When you were not in the sacristy were you aware as to what the altar servers were doing?

And the answer is:

Taking things what I gave them from the sanctuary to put in the sacristy, and then they would come back out . . . to see if there was anything else to come off the sanctuary.

Then the question is asked:

sorry, by then would the priests have arrived back from the procession?

And the answer was:

They would – they would arrive back and disrobe.

MS JUDD:   Yes, but he is not saying when it was that the priests were disrobing.  If there were priests disrobing there, remembering what McGlone said, he is saying they would – he talks about taking things from the sanctuary to put in the sacristy and in some respects those things can be happening around the same time.  It is not one happens first and then the other one happens.  There is just no evidence about what the priests were doing, whether they remained in – you know, went back in.

KIEFEL CJ:   Does that help or hinder the Crown case before the jury, then?

MS JUDD:   The jury are told not to speculate and as to there being priests in that room at the relevant time there is not evidence, we say, that puts the priests in there in that six or so minutes.

BELL J:   What you do not have, on one view, is an explanation of what the priests and the altar servers are doing for that period of five or six minutes.

MS JUDD:   Not a complete explanation, no, but we certainly have evidence that the altar boys are not in that area for that period of time – not in that room, I beg your pardon.  It does not positively say exactly where they are for that five to six minutes but the evidence is to the effect that they leave that room and then they go back in once they are carrying the items back in.  There is no reason for them to come back in until they are carrying the items back in.

BELL J:   Indeed, but their practice is to ‑ after the end of the procession when they have bowed to the crucifix, they go about the business of clearing the sanctuary.

MS JUDD:   That period does not go until after private prayer time so as not to disturb – it is the same for the altar boys.  So Potter and the altar boys are doing that together.

GORDON J:   That period does not start from the moment they bow.  That period has already been going on.  They have had to walk out, they have had to go around, they have had to come in a door, they have had to ‑ ‑ ‑

MS JUDD:   Well, if you read the evidence as that period starting at the commencement of the procession, then it did include that, and I say the evidence is not that clear in that regard as to when that period started.

KIEFEL CJ:   All right, we might move on to your item number 10.

MS JUDD:   So we say there was no reversal of the onus of proof.  If I could start with paragraph 11 of the core appeal book – sorry, of the majority judgment.  It starts at 182 of the core appeal book, but going on to 183:

The defence case was that A’s account was a fabrication or a fantasy and that, in any event, the evidence of the opportunity witnesses, taken as a whole, combined to render A’s account ‘either literally impossible, or so unlikely it’s of no realistic possibility’.

So what I say is from the outset the majority were aware of both the literally impossible argument and the no realistic possibility argument.  At 65 they acknowledge that there is no onus.  At 93, which I have taken you to a few times, they demonstrate an awareness that the impossibility and opportunity evidence is relevant to the assessment of A and they pick up SKA in the footnote which talks about needing to look at the whole of the evidence and the footnote relates to opportunity evidence, so again picking that up.  At paragraph 121 there is an adoption there or a reference to what was said by the trial judge on the onus.  At 128 to 30, again recognising, we say, the onus.  For example, 129:

the prosecution bore the burden throughout ‑ ‑ ‑

BELL J:   What do you say of paragraph 128 where their Honours say:

The prosecution’s case was that the opportunity evidence left open the realistic possibility that Cardinal Pell was where he was alleged to have been on the particular occasions.  The jury did not, therefore, have to have a doubt in that regard.

MS JUDD:   That is, to some extent, expressing the M test.  But it is also, to some extent, picking up how the trial judge directed the jury.  So the opportunity evidence on its own did not necessitate having a doubt.  So they are going through different paragraphs, dealing with different aspects.  They are recognising that it was for the prosecution to rebut them.

BELL J:   What they recognised, or it would seem what their Honours recognised, was for the prosecution to rebut in the sense of leaving open the realistic possibility that the offence could have occurred.

MS JUDD:   Yes, but they elaborate on that in 129.  They say that:

The prosecution also bore the burden of proving beyond reasonable doubt that the particular sexual acts took place.  Thus at all stages of the trial the burden of proof rested with the prosecution.

BELL J:   In the first sentence of that paragraph:

bore the burden throughout the trial of proving beyond reasonable doubt that there was a realistic opportunity for the offending to take place.

MS JUDD:   Yes.  They did, but they also had to prove beyond reasonable doubt that the offending took place.  If they do not establish that, it falls – and it falls very easily.  If the prosecution does establish that, then we get back to the whole of the evidence.  I think that is what they are saying.  To some extent it is picked up with what was said on the charge from, I suppose, 44 on to 46, and I will not read it all because you were taken to this by my learned friend.  My learned friend does not take any issue with his direction. 

At 46 the judge is saying – taking into account all of those relevant opportunities and so forth, the opportunity evidence, first of all, taking into account, you need to be satisfied beyond reasonable doubt that the events as described by A happened, then you can convict.  On the other hand, if any of the evidence raises a reasonable doubt about whether A’s account:

is true you must acquit.  That also means that if any of the opportunity evidence, whether alone or perhaps collectively or in combination, raises a reasonable doubt about –

whether A’s account is true, you must acquit.  So, in a sense, it is picking up both ways that they can come at it.  There are a couple of paths that perhaps lead to a finding, an acquittal.  Paragraph 131 then talks about:

In the next section, we consider the evidence relied on by the applicant to establish the impossibility contentions as articulated in the written case.

So, again, dividing up what they were saying about Part 1 and Part II.  So that is 131.  I now take you to 135, recognising that the appeal contentions about impossibility were very much the same as how they were advanced at trial.  Paragraph 151, they say:

An argument of impossibility, if supported by the evidence, is effectively unanswerable.

So that is again - that is why I am giving some interpretation to those previous paragraphs.  Paragraph 232, I wanted to draw your attention to.  Again, they are acknowledging that:

the defence did not have to prove anything in this trial.

Then the ultimate conclusion at paragraph 351, which again - 351 is very much consistent with that part of the charge that I just took you to. 

Could I then move just to the miscellaneous points that have been raised?  The compounding probabilities point, if we go to 841 at 422 of the core appeal book.  If you look at those dot points, and if I can perhaps describe them as if they are numbered, if you look at 2, 3, 4 and 7, they are all the same point.  If you look at 5 and 6 it is the same point, and if you look at 1 it overlaps with each of those. 

Now, 8, 9 and 10 I submit are perhaps not so important given the way the appeal has run.  So that has to be borne in mind when you are looking at a compounding improbability.  They are not all separate points, and I am referring to the way Justice Weinberg analysed it.

BELL J:   What if one were just to look at the matters in respect of which, in advance of the trial, the prosecution sought leave to cross‑examine their own witnesses on the basis that, in respect of those topics, the evidence they anticipated those witnesses would give would be inconsistent with the commission of the offence in the way A described it?  What if one just looked at those matters, on which the prosecution sought the leave, and viewed those as having, as it were, a compounding effect?

MS JUDD:   The leave point was on whether there were invariable practices.  The two big points raised against us in this, as I see it, are one, the “meet and greet” evidence, and the second, the timing.  It is not compounding improbabilities; they are not all separate points.  They are two points that, if they are going to succeed, they will probably succeed in their own right.  It is not a compounding probability argument, in my submission.

BELL J:   Perhaps one might add to that the practice, consistent with centuries of church practice, of not leaving an archbishop alone while the archbishop is in the cathedral in his full vestments following a solemn mass.

MS JUDD:   Yes.  But I say as to each of them there was ample evidence to demonstrate that the practice just was not as strong and not as strictly adhered to.  So I am only repeating myself now.

BELL J:   Yes.

MS JUDD:   But it is relevant to that question, your Honour.

BELL J:   Amongst the reasons that the majority in the Court of Appeal said that the evidence of Monsignor Portelli and Mr Potter was not an obstacle, if you like, to the prosecution discharging its burden was that their recall was uncertain in some respects.  They could not remember details of whether the procession was inside or outside the cathedral, things like that.

What do you say to Mr Walker’s point about the requirement that the Court approach this task by reference to the section 39 direction under the Jury Directions Act, but not use that very same reasoning against the accused, or appellant?  One is to take into account the frailties of memory and the difficulty for a person defending a matter after 21 years. 

Here, the reasoning seems to be, well, there was a realistic opportunity.  The practice was not so certain, because both of these honest witnesses admitted they could not be absolutely confident that the practice was always adhered to.

MS JUDD:   I think they did know – they did acknowledge the forensic disadvantage in their analysis.  Just on the compounding improbabilities point, they deal with it – to the extent that the majority deal with it, it is really at 170 to 173 - 170:

Plainly enough, uncertainty multiplied upon uncertainty does not – and cannot – demonstrate impossibility.

So that might cause your Honour Justice Bell some concern.  But when you read all of that in combination, we would say that they were not so much treating these as improbabilities, and therefore they could not be compounding improbabilities.  The next point was Justice Nettle asked me a question, and I said I would like some time to answer it.

NETTLE J:   Yes.

MS JUDD:   That was do I say that the evidence that links ‑ ‑ ‑

NETTLE J:   Portelli’s evidence of an actual recollection of having been with the Archbishop on the steps on 15 December 1996 was something which it was open to the jury to exclude beyond reasonable doubt.

MS JUDD:   Well, what I say to that – so I think before lunch I pointed to the differences in ‑ ‑ ‑

NETTLE J:   You did indeed, yes.

MS JUDD:   ‑ ‑ ‑ open‑ended question, so I say take that into account in combination with the choirboys, in combination with the complainant’s evidence.  The complainant - we say on the whole of the evidence the jury can accept the evidence of the complainant to the standard of beyond reasonable doubt, so it can be taken into account.  Notwithstanding the evidence of Portelli, it was still open to them.

What I perhaps did not say and what I want to emphasise now, just a further point, is that to the extent that that point is really made it is made more about the 15th than the 22nd.  In the same way that we say that - so, if he is remembering it because of the first mass that he says, that is going to be the 15th, it is not going to be the 22nd.  So it is just not as strong in relation to the 22nd, in the same way that we say if McGlone gives an alibi, the most he gives is for one of those two days.  So I just ask that that go in the mix. 

Father Egan - there is a lot I could say about Father Egan.  Essentially I think we have most of it covered in our written submissions, but what I do want to specifically say, is that it is – the evidence – I know Mr Walker said that the evidence was that they were in the procession together and he would have been next to him, and I think that might have been in answer to a question from the Chief Justice. 

The evidence did not get that high, we say.  The applicant relies on the evidence of Connor.  The evidence of Connor is at core appeal book 297, 345 to 346.  He did not have a specific recollection.  So the highest he gets is that he has the acknowledgement about the diary.  The other point is the respondent’s further materials, 709. 

BELL J:   I am sorry, could you just give me that reference to Mr Connor’s evidence. 

MS JUDD:   So I was taking you to where it was referred to by the majority at 297 of the core appeal book.

BELL J:   I see.

MS JUDD:   Paragraphs 345 and 346, and then also the respondent’s further material, 709, lines 3 to 5.  So he does not have any independent recognition of the occasion.  Then in terms of – but there is no evidence at all about him being next to him in the procession.  There is also the point about standing on the steps when presiding, so this is when - again, this is Connor, 713.  Sorry, your Honour, I think that is what I was taking you to – 715, I beg your pardon - 715 to 716. 

Connor does not ‑ at line 18, Connor did not actually see him and they went to 23 February just as one example, line 29.  Then over the page, he acknowledges he does not have a specific recollection, so being with him on that second occasion on the front steps so as to further an alibi.  Then Richter acknowledges that in terms of an invariable practice, so using that for a practice, then pretty much acknowledges that:

there wouldn’t have been an invariable practice because he very rarely just presided ‑ ‑ ‑

GAGELER J:   Ms Judd, if it were not open to the jury to be satisfied as to incident 1, do you submit that it was still open to the jury to be satisfied as to incident 2?

MS JUDD:   I think I would have some difficulty with that.

GAGELER J:   So the answer is no?

MS JUDD:   Yes, because the reality is that if they are not satisfied of incident 1, there is a concern being expressed about the reliability of the complainant.

BELL J:   Is there a statutory prohibition on that form of reasoning?

MS JUDD:   Well, this did come up in terms of what the judge was asked to give some directions on and the judge stuck to giving the separate – looking at the evidence separately.  I do not know that I have that material that I can come to, but it came up.  But the difficulty is - it depends on the path that the Court takes, I suppose, but if you decide, for example, that the timing is such that it just could not have happened you are rejecting the complainant’s evidence that it did happen.  That is the reasoning.  It depends on – it just might depend on the reasoning process, but I imagine we would have some difficulties.

The other point about Father Egan, though, is that it does – for this Court to go down that path, it does contradict what has been said in other cases about the drawing of inferences and so forth, and it is also just a very, very different case to Whitehorn.  Whitehorn was a case where in fact it was the complainant that was not called, the complainant’s name was on the indictment and in fact there was evidence given about the first complaint or a complaint made by the complainant, so the defence were at a disadvantage in not being able to cross‑examine the complainant about evidence relating to that complainant’s first complaint - just a completely different case.

The choir rehearsal point, I did promise Justice Gageler I would come back to.  The choir rehearsal point came up in two ways.  It was raised as an impediment to him being able to get back, and it was also raised in the context of his credibility in that he changed his version when faced with this not being probable. 

What I do say about the choir rehearsal point is that in a sense it does not matter whether there was a rehearsal or not because there was evidence still that they went back into that room to disrobe.  Whether the choir rehearsal took place at that point or it took place in the cathedral, there was no certainty about where it was – but he still had to get back.  I do say that you cannot get the evidence about the choir rehearsal simply from those schedules of evidence, and I think that was something that Justice Edelman mentioned.

To the extent that we have it, we have the Court of Appeal dealing with it, the majority, and that is probably in the time I have left all I can do on this point and also given the limitations in the material, that it is not all here.  But if we go to 221 of the core appeal book, that is where the court - the majority talk about:

A third topic concerned whether A and B could have rejoined the choir unnoticed –

That goes all the way to 225.  We also pick up, I think, 226 and 227.

GORDON J:   Is that paragraph or page?  Are they references to paragraphs?

MS JUDD:   They are references to paragraphs.

GORDON J:   Thank you.

MS JUDD:   So it starts at core appeal book 249, the paragraphs are 221 right through to 227.  Then I said there were two points.  The other paragraphs are 306, and 324 to 326 – but that is then dealing with the impossibility argument so we are there at Part II rather than Part I.  I can take you through that if you would like me to.  I am just conscious that I have been told to not take too long, Justice Gageler.  There is not much more that I can really add than by just going through those paragraphs.

GAGELER J:   You have referred to the paragraphs.

MS JUDD:   I am not asking to do more.

GAGELER J:   I will read them.  Is there something you want to say about them?

MS JUDD:   No, no.  I was just concerned that I did not give your ‑ ‑ ‑

GAGELER J:   No, thank you.

MS JUDD:   ‑ ‑ ‑ question the fullest ‑ ‑ ‑

KIEFEL CJ:   Ms Judd, if you need to put a note in on a particular topic ‑ ‑ ‑

MS JUDD:   No.

KIEFEL CJ:   ‑ ‑ ‑ that you feel you have not completed, you can do that.

MS JUDD:   If Justice Gageler is not concerned about me being discourteous by just dumping paragraphs on him.

KIEFEL CJ:   I see.

MS JUDD:   Rather than going into the detail that I had with some other ‑ ‑ ‑

KIEFEL CJ:   That happens all the time here, so I would not worry about it too much.

MS JUDD:   That is all I was worried about.  So that is the choir rehearsals.  Justice Nettle, I have here, asked another question about staying on the - I think I have probably dealt with that to the extent that I need to. 

The final point - I think it is the final point, I am just going to check with my team in a moment, but I am hoping the final point is - it is probably a point that, Justice Bell, you raised initially, but it seems to have come up, is that if you do find an error in the reasons what you then do with it.  What I submit is that even if you do find that there is an error, the M test still has to be applied and for the M test to be applied, it is necessary to look at the whole of the evidence. 

I do not have an objection to this Court doing it.  I do not have an objection to it going back.  I mean, it would be good to have some finality, but if this Court does embark on that - I say the Court would need to embark on that task and look at the whole of the evidence and that all of the material would need to be placed before it.

BELL J:   Would that be so if Mr Walker’s submission is good, namely, properly analysed, the Court of Appeal majority as well as Justice Weinberg identified evidence that established a reasonable doubt of a character that made it not open to a jury acting rationally to find guilt proved beyond reasonable doubt notwithstanding acceptance of the credibility of the complaint?

MS JUDD:   Yes, I say it still would apply, because what is being identified is an error in their reasoning and their findings.

BELL J:   I see.

KIEFEL CJ:   I think what Justice Bell was putting to you was that if you actually apply the Court of Appeal’s findings, but correct it in law in the way in which Mr Walker was putting it, would that require the matter to be reconsidered or can it be finalised?

MS JUDD:   Yes, my submission is it does, because they make their findings, and they make their findings on the basis of the evidence, and that might demonstrate an error, but it does not demonstrate that - that of itself does not demonstrate that it was not open.

BELL J:   So, even if it is clear to demonstration that each member of the Court of Appeal, having reviewed the whole of the record, found matters which had not been negatived by the Crown and which, as on a rational analysis of the evidence, left open a reasonable doubt that the offence could have occurred in the way that was described by the complainant ‑ ‑ ‑

MS JUDD:   That is my submission.

BELL J:   I see.  That is, your submission is it would be necessary nonetheless for this Court to remit the matter or to embark on the same exercise, having regard to all of the material.

MS JUDD:   In fairness to the M test, that is my submission.  I say it is not enough to find that error, and that error is based upon their own assessment of the material.  To satisfy the M test, in my submission, it is necessary to do that assessment.  You may find against me on that, but I do submit that quite strongly, yes.

KIEFEL CJ:   That is your position, yes.  Thank you, Ms Judd.

MS JUDD:   They are my submissions.  Thank you for your time.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Walker, do you have any reply?

MR WALKER:   Thank you, your Honours.  Your Honours, could I start with the matters which I think are conveniently called point number 8 in our friend’s outline.  Today it is established that, insofar as it is appropriate to talk about a Crown case in this Court – and it is not really – the argument says that the offending took place and obviously the proposition is that it could have taken place, given the necessary duration, after the servers had entered to bow to the crucifix and before the so‑called hive of activity, which is the servers and others being involved in the ferrying to and fro from the sanctuary to the very same room of the sacred vessels.

We know that at trial, perceiving understandably a difficulty in proving beyond reasonable doubt the offending as alleged, the Crown went to the jury initially, as I explained in‑chief, namely, that there was a gap or hiatus constituted by a period when the servers went elsewhere after the bow to the crucifix.

There was objection at trial on the basis of there being no evidentiary foundation for that argument and the Crown accepted the propriety of the objection and to the jury withdrew it.  That is now, startlingly, to us, described as an incorrect disavowal by a very generous prosecutor of that theory. 

What we do not have, of course, is the second shoe dropping; so where is the evidence, the non‑existence of which, as understood by counsel on both sides at trial, led to the withdrawal by the prosecutor of such an argument and your Honours do not have it.  In our submission, we should not have to deal with that kind of improvisation at this point.  You will not find it in the exchange of written submissions, for example. 

It seems at most to be given a strangled amount of oxygen in the argument by a misreading of the evidence of Mr Potter, to which you were taken in volume 1 of the respondent’s book of further materials, page 426 where it is plain that the passage between say line 5 and line 28 on that page has been misread by our friends so as to elide the distinction that the witness draws between those bearing the crozier and the mitre, the bowing and going off to disrobe, and the other altar servers who proceeded to go into the priests’ sacristy, do their vows, follow directions as to what they should do with various vessels. 

In other words, that is not evidence that clears the room of servers and never was and was appropriately recognised at trial by the Crown as not constituting any such evidence.  They accepted there was no evidence of the room being cleared of servers at all, let alone for the requisite duration, to permit the offending as alleged to be possible, let alone, of course, to be proved beyond reasonable doubt.

My learned friend this afternoon was asked in particular by Justice Edelman about the difficulty for the Crown theory of the priests’ sacristy also being the location for the disrobing of priests.  Now, your Honours have had some suggestions, we think, floated to the effect that one should doubt the notion of there being other priests and we would draw to attention that it is, of course, the complainant himself who talks about other priests, as well as others, and Mr Potter at page 427, the very next page of the transcript before you, places those priests in the sacristy in order to disrobe.  There is nothing to displace that as a reasonable possibility constituting in a compounding fashion the overall reasonable doubt which the jury, acting rationally, must have felt.

In relation to an allied matter giving rise in a compounding way to reasonable doubt, and with respect to so‑called departures from practice, can we draw to attention that the practice based on long‑held ecclesiastical tradition of the robed archbishop always being accompanied was one of those that was said to be the subject of what my friend recently called ample evidence - ample evidence of departure.

Now, there is a logical problem with the argument that we have identified in‑chief and which I will not elaborate further in reply, namely that at most, of course, such a line of reasoning would only produce a possibility, and one cannot convict on possibilities.  But leaving that question of basic method to one side, the ample evidence, when one goes to it in volume 2 of the respondent’s book of further materials, page 609 - I do not need you to open it, but it is lines 15 to 17 - lo and behold is, having seen the robed Archbishop, true, responding to the question of unaccompanied, but it is an idiosyncratic understanding of unaccompanied in the evidence, because it is unaccompanied because he is joining the procession. 

Now, in our submission, that is a hallmark of an improvised and rickety construction of a Crown case to make something fit that will not fit.  In that respect a number of your Honours asked my learned friend - I will need to – may I hand up in order to respond to that question, with chapter and verse, the transcript, appropriately redacted and the address of Mr Crown on this very point. 

Now, I referred to this - it is noted in the reasons in the Court of Appeal - but given the way in which questions either were answered or were not answered today we, in our submission, wish to put this before you.  This is the passage where the so‑called fit was attempted when it went to the jury after the correction of the unsubstantiated case to which I have referred just beforehand.  So after they had said we cannot have the server somewhere else, we do not have evidence of that, you see the way the matter was put by the Crown.

Picking it up on page 1384 it starts, I suppose, at about line 14 or so.  I am not going to read it all, but that concludes – that stage of reasoning concludes at lines 28 and 29.  “So, I don’t know” – I interpolate, that is the kind of imprecision that can only assist an accused, never, surely, a prosecution.  “I don’t know” - that adds up to the sort of approximately five minute period that this offending took place and now your Honours will observe the slide and why the slide rhetorically is being carried out:

The offending at most was –

now it is five to six minutes:

and that equates –

This is the meaningless or nonsense coincidence to which I was referring in‑chief.  And that equates, that is, five to six is the same as five to six – in our submission to you, that the five or six minutes that Potter spoke about respecting the privacy of kneeling practitioners before he starts ferrying items to the sacristy.  Again, it fits, it is not inconsistent.  Now, that is it.

That, in our submission, is, we are afraid to say, repeated as to its fallacious core not only in our learned friend’s arguments to which I am replying, but in the passage of the majority in the Court of Appeal that our friends are seeking to vindicate.  In our submission, there is nothing in point 8 of the way in which the respondent seeks to answer our appeal, were we granted special leave.

When one goes as well to the evidence to which you referred of Mr Mallinson at 268, this was again by a kind of prosecutorial improvisation in the High Court, which really should not be countenanced.  At about line 20 or so, you will see that that was said to be the source of the possibility of expanding the now embarrassing five to six minutes, which surely started at the end of mass and as the procession started, but by reason of an exigency which no one ever suggested on these two occasions.  So, in our submission, there is yet again a lack of solidity to an argument upon which the Crown always bore an onus, no shift with respect to eliminating reasonable possibilities that the Archbishop was not where he had to be in order for the offending to have occurred.

Could I then move to the related question of the approach to practice – I am sorry, that is premature.  We are not sure, with respect, as to whether it was intended in argument this afternoon to propose that the, what I will call postponement of the five to six minutes, until some time never specified after the procession had started, at the end of mass, which, by the way, is a process which would extend the five to six minutes.  It would not postpone the start of the five to six minutes, it would simply say there is a longer gap.

But, in any event, we cannot tell from the argument against us as to whether it is proposed that there is actually evidence that the five to six minutes for the interval of decorum, private prayer time, was postponed until some time materially after the procession started because, as it were, there was a collision, physical collision, between the congregants in question and the procession, or those involved with the procession.  Because, with respect, there was no attempt to point out any such evidence, it was not a factual issue at trial, and, with respect, it is again an indication of an inappropriate and over‑engineered attempt, with improvisation, to make fit matters which will not fit.

There was evidence that my learned friend referred to in completely general terms as “conflicting”, they said, about whether there were concelebrants whose presence, of course, would feed into what I have said concerning the difficulty for the Crown case of priests arriving at the end of the procession to disrobe in the same sacristy.

It is not clear what our friend means by conflicting evidence.  But as I have noted, in the evidence of the complainant found in the respondent’s further materials at 35, lines 3 to 6, there would appear to be a statement which, whatever other evidence was being relied upon, was evidence of concelebrants.

With respect to the attempt again to improvise a case about what in truth is extending the five to six minutes materially beyond what the Crown addressed on to the jury for the interval of decorum, your Honours will have noted this afternoon the calling in aid of Mr McGlone’s evidence and about timing, as it were, and other aspects of his position on the day that he went to meet his mother.

This, with respect, is a very unusual use of that evidence, namely, in support of the offending by proving an available time, bearing in mind that that is testimony which, when one considers it, (a) as a whole in itself and (b) in the context of all the evidence in the case, supports – and we do not have to prove anything, but it does as a matter of logic support the Archbishop being on the steps on one of the days in question.  It really will not do, with respect, for the Crown to be, as it were, cobbling together matters at this stage.

Could I then, as I say, move to the remaining aspects of the argument concerning practice that our learned friend has addressed on.  It is, of course, critical to note that there is now abandoned the proposition that was open to the jury to proceed by reference to the practices inconsistent with the offending, themselves not commencing until after 23 February 1997.  I would refer to that in‑chief; that is gone now from the case.

Leaving only the question as to whether in discharging their onus beyond reasonable doubt to prove the offending, the Crown can point to material which meant that the jury did not have to feel a doubt by reference to the inconsistency of those practices with the offending.  That can only be done logically, properly and decently, by evidence that excluded the reasonable possibility of no departure from practice.  The argument against us seems to invert that, hence our argument to which we adhere completely about reversal of onus, both in the majority reasoning in the Court of Appeal and in the arguments against us.

The reasoning against us seems to be that if by pointing to evidence the Crown can show it is possible that an inconsistent practice was departed from on a day in question, then by that feat, forensically, they have achieved proof beyond reasonable doubt that it was departed from.  Let me explain, because it is only if it was departed from that the offending could take place in face of what would otherwise be an inconsistent practice.

That, in our submission, is a grotesque version of the reversal of an onus of proof – that all the Crown has to do is to prove the possibility of something consistent with offending and you have got proof beyond reasonable doubt of offending.  And, in our submission, far from answering our arguments to that effect in‑chief our friend’s address has in fact perpetrated further fallacies of that kind, and they should be identified and rejected.

We are not sure whether we have to deal with another of these improvisations, but I should name it because it was referred to by my friend.  That is, the evidence concerning the possibility on occasions of the stay on the front steps being as short as six to seven minutes.  The magic, if I can put it that way sarcastically, about six to seven minutes is that it is less than the 10 which now, we think, is accepted as being a period too long to remove or eliminate reasonable doubt about the offending. 

And, in our submission, if that is – and your Honours will, of course, need to consider whether that is part of the Crown argument, and what my friend said in address is what she said in address, then the point to observe, of course, is that its lack of merit is apparent from the fact that the six to seven minutes occurs only – and this is at 497 in the RFM bundle, line 22 at Monsignor Portelli’s evidence – is if ‑ and here he is being led in‑chief by the Crown – he had some other engagement to do that afternoon.  No attempt whatever to suggest that that was true on the occasions requisite for the Crown to investigate and assemble and address on the evidence about, in order to remove the reasonable possibility of the impossibly long duration of meeting and greeting for the offending to have been committed.

It is, with respect, for those reasons, that my learned friend’s reliance as passages of reasoning rebutting our submission that the majority has wrongly reversed the onus, on paragraphs 282 and 283, are wrong – simply wrong.  They are paragraphs which, alas, completely reveal the kind of reversal I have referred to.

Can I come then to what was called, and be forgiven, I think, for saying tendentiously, supporting evidence.  In the interest of brevity we urge, without repeating them, the arguments that we have set out in paragraph 5 of our reply submissions and its footnote 2, as well as our submissions‑in‑chief in 39.  But with specific reference to the way in which our learned friend has put this in address can we note that the word “support” really does not seem to be conceptually different from “corroboration” and that there has not been an explanation given by the Crown as to why it can ever be said that one part of a contested narrative corroborates another part of the same contested narrative from the same person, when the evidence of that person is necessary for a conviction to be secured.

There is nothing about the knowledge of the room that means the Archbishop must have been in it.  After all, this is a complainant who said that he sneaked off, and sneaked into a place where he knew he should not have been.  Why logically it is said that because he can, not entirely accurately - that is all picked up in our written submissions - describe a place that he has either been able to see on a tour or otherwise got into, why that is said in support of proof beyond reasonable doubt of the offending to support or corroborate the offending part of his narrative is never explained.

In our submission, it is absurd to suppose that that is a matter which moves from a position where there are reasonable possibilities inconsistent with offending to their elimination – does not speak to the matters upon which we rely at all in that regard.  It is a species of the same circularity that we sought to argue in‑chief.

In relation to Father Egan may we, with respect, correct the proposition that our learned friend put this afternoon that the evidence did not support him being with the Archbishop.  In the core appeal book page 429, there is the material there quoted by Justice Weinberg in his Honour’s paragraph 869.  I do not need to read it.  In any event, there is the evidence just above that to which our learned friend went on page 297 of the respondent’s book of further materials in paragraph 345 where 22 years after the event somebody says he would have. 

There is no attempt by the Crown to say, well, that would be contrary to liturgical custom, or what would a celebrant be doing next to the presiding archbishop?  It is all the other way.  There is nothing in that point at all.

Justice Gageler asked about the matter of an implication for the second episode of offending, were it to be concluded that it was not open to the jury to find the first episode of offending proved and Justice Bell raised, with great respect, an important question about the statutory regime.  Justice Weinberg, as your Honours know, adverted to this and acted, with great respect, in what could  only be described as a very circumspect manner in his paragraphs 1097 and 1098.  With great respect to his Honour, it is possible that his Honour was too reticent in 1098.

The point we would make is a simple one.  The statute in question is not one which tells judges how to reason, including that they should reason counterintuitively, to use an adverb his Honour uses.  It is difficult to control the ways in which what we learn from Aristotle and the like can be used in a court.  Judicial process is not process that can be, as it were, distorted or made fictitious in its attachment to logic by statutory precept, at least one hopes, and in another place another time there might be a constitutional question about legislative competence to do so, were any parliament ever to have done so.

It suffices to say that the statute in question here, to which his Honour paid such regard – we submit excessive regard – does not do so and that the established proposition that a Court of Appeal asking whether it feels a doubt, which the jury should have felt, paying due regard to the so‑called advantages of the jury, can take into account that the fact that there must have been doubts felt about one episode can, depending on the facts of the case – it depends upon the degree of discreetness of the offender, for example – can inform the same question about the second episode should there have been a reasonable doubt felt about that.  In our submission, for what it is worth, yes, that is an available method with respect to your Honours’ approach to the case.

BELL J:   In that regard can I just inquire, Mr Walker, that is partly because section 4A(2) of the Jury Directions Act is concerned with the approach to reasoning of the judge at first instance dealing without a jury and is not concerned with the approach of the appellate court to the analysis?

MR WALKER:   That is right.

BELL J:   That is the point you make.

MR WALKER:   That is exactly so.  It does not say to appellate judges you cannot do that.  It would be an interesting quick spectacle if it did do that.  Could I then turn to the question of the robes?  Again, it is significant to see how the Crown addressed on this, Monsignor Portelli not challenged on his demonstration of what he said about possibilities. 

As you know, our footnote 13, to which I referred in‑chief – our footnote 13 records how and why we say it was an error for the majority to hold it against Monsignor Portelli as to what I will call his reliability, query credibility, that they disagreed with him.  We do not know about the chambers experiment; we do not know how they put on the robes.  We do not know – we do not have a protocol of the experiment.

You do not have the transcript, but you do have quotations from it in the PFM, parties’ further materials, at 51. I do not need to take you to it.  The transcript reference at trial is 1383, line 26 to 1384, line 6 and there is a relevantly succinct argument there which in no respect condescends to deal, critically or otherwise, with the way Monsignor Portelli had explained the matter, simply assertions by counsel without dealing with that evidence.

But more significantly, in the Court of Appeal during argument, senior counsel for the Crown - and one will see this in the applicant’s further materials book, pages 104 to 107; I do not need to take you through it ‑ made it clear that at that stage of affairs it was accepted that the robes would have to be lifted out of the way, as opposed to the complainant’s version of being pushed to one side. 

So there is nothing, with respect, in the way in which the experiment was conducted by the majority which constitutes an elimination of a doubt that the jury must have felt on account of, by way of compounding and contributing to a combination of matters, the difficulty of the robes.

Could I draw to attention that with respect to – forgive me just one moment - I am obliged to my friend, and I think this is in response to a question of Justice Bell to me and my answer to it, to draw to attention - and it is contrary to what I put - section 4A of the Jury Directions Act subsection (1)(b) ‑ ‑ ‑

BELL J:   Do we take it from that that Justice Weinberg was correct in his analysis?

MR WALKER:   Yes, but whether that means that you are forbidden from – it is one thing to talk about what used to be achieved by so‑called cross‑admissibility; it is another thing to say cannot contribute to the feeling of a doubt.

KIEFEL CJ:   Would you like to put a note in in relation to that, Mr Walker?

MR WALKER:   I am obliged to your Honours.

BELL J:   I think it is doing away with the direction that otherwise would be given that it was open to the jury to have regard to a finding of credibility in relation to one count in their assessment of the same witness on the other.

MR WALKER:   Exactly right.  It is an attempt, we think, to reverse that.

BELL J:   Yes, to reverse that decision.

MR WALKER:   I am not departing, at least at present, from what I have put concerning the state of affairs in this Court, considering what the Court of Appeal should have done, but I would be obliged for the opportunity to put in a short note on that.

KIEFEL CJ:   If that could be done shortly, in the next few days.

MR WALKER:   Immediately, your Honours.

KIEFEL CJ:   Immediately, thank you, and a response within a few days, two days - two working days.

BELL J:   I do not want to take you off your course, Mr Walker, but at some stage, are you going to address the question of - if your application succeeds and were error to be found, what is the proper order?  You seek an order quashing the convictions.

MR WALKER:   Yes.

BELL J:   What do you say to the ‑ ‑ ‑

MR WALKER:   Your Honour has not taken me out of my course, that was my next point, and if this entices your Honours, my last point.  If we succeed in that fashion, it amounts to this Court exercising its appellate jurisdiction, having determined that what the Court of Appeal should have done was to quash the conviction and enter an acquittal and that is the power and duty of this Court, qualified only by the appropriate cases for remitter.  Classically, certain miscarriage cases are cases where it would not have been what the Court of Appeal should have done to enter an acquittal but to direct instead a retrial and in such cases that is what this Court does.

BELL J:   Here, you say, on the Court of Appeal’s findings ‑ ‑ ‑

MR WALKER:   Quite.  Exactly.

BELL J:   ‑ ‑ ‑ once corrected, that is the order that should have been made and that this Court, accordingly, would make?

MR WALKER:   Yes, the argument that we put below is not an argument which, at any point, involved a retrial.  It did on points that do not survive to this Court.  There was one retrial point but not on this point.

BELL J:   I did not understand Ms Judd to be raising any issue of that character; I understood her to be saying this Court, then, would be in the position of having itself to carry out the M v The Queen exercise.

MR WALKER:   And my short answer to that is no.  This Court is hearing an appeal from following M and you do not do that, if I may say so, by hearing de novo, nor by an appeal by way of rehearing. This is section 73 of the Constitution, your Honours determining whether there is error shown in the way the Court of Appeal applied M.  You do that and then adapting to your findings and conclusions proceed to make the order in view of what the Court of Appeal did that the Court of Appeal should have done.

You do not embark afresh on what I will call a Weiss – if that is the right pronunciation – reconsideration of all material quasi proviso style.  There is no call for any of that and, with great respect to our friend, we do not think actually that was what was being proposed as a matter of doctrine.  It certainly does not involve being sent back to the Court of Appeal to have another go.  That would be an injustice in the administration of criminal justice, so far as concerns our client.

NETTLE J:   If one were to find error in the process of reasoning of the Court of Appeal which did not of itself dictate that the jury should have experienced a reasonable doubt it would have to be sent back, would it not – unless we could do it?

MR WALKER:   That would follow by parity of reasoning with what I have just put.

NETTLE J:   Yes.  You say in that event we should send back rather than do it ourselves by getting all of the materials to which reference had been made.

MR WALKER:   That is an event I think that is too hypothetical for me to give a clear answer to your Honour.  We do not understand that it has been proposed by the Crown that there could be any of the errors that we have proposed found that would then require, in any way that they have demonstrated, this Court to look at more material than we have, that is the parties between them, put to your Honours.

NETTLE J:   Well, let me be specific about it.  Let it be assumed that it were found, for argument’s sake, that the Court of Appeal reasoned erroneously in saying well, it was possible and that is enough.

MR WALKER:   Yes.

NETTLE J:   Whether each of those individual events to which they went and said, “Well, that was possible, that is enough”, should have resulted in the jury experiencing a reasonable doubt, notwithstanding their satisfaction of the credibility of the complainant is not necessarily to be decided upon the same basis?

MR WALKER:   No, but all the material, including the findings concurrently of the majority and Justice Weinberg do produce that outcome.  That is our answer.

NETTLE J:   If we were to conclude that there was error but we did not accept that it conduced to that result, then what, that is to say, we find that there is error but that does not satisfy us, without going through the exercise, that all of the evidence should have left the jury with a reasonable doubt.

MR WALKER:   Sorry not to be direct in answering your Honour.  Any one of the errors we have alleged would produce the outcome ‑ ‑ ‑

NETTLE J:   I know you say that.

MR WALKER:   Yes.

NETTLE J:   But let it be assumed that it was enough to demonstrate error but it does not produce that outcome.

MR WALKER:   Then the reins would have to be picked up in order to complete the appeal properly.

GORDON J:   What do you mean by that, Mr Walker, for this Court?

MR WALKER:   It could be done in this court or below.

NETTLE J:   So it would be a matter of needing to have further submissions on the remainder of the materials – is that what you are saying?

MR WALKER:   It may only be a matter of further submissions.  We do not apprehend that there is anything else that the Crown wants to rely upon against acquittal apart from those materials that they have already pointed to and fully addressed on.

NETTLE J:   It may be the answer that there are no more relevant materials to which to look.

MR WALKER:   It would be better in that case, of course, in the interests of the administration of justice ‑ ‑ ‑

NETTLE J:   Certainly.

MR WALKER:   ‑ ‑ ‑ generally, as well as in the particular case, for it to be finished in this Court.

NETTLE J:   That could be done, provided that there is no other relevant material. 

MR WALKER:   That is correct, your Honour.  We have not heard of any other relevant material.  If there were other relevant material it is only, I think, completely theoretical questions of massive scale that might give pause to this Court seeking to finish the matter off.  There is no suggestion ‑ ‑ ‑ 

BELL J:   There is no contest respecting the findings in the Court of Appeal on which you rely. 

MR WALKER:   No. 

BELL J:   That as I understand it is not in issue and you say, correctly – if the law is correctly applied, those findings support the orders that you seek.

MR WALKER:   That is our position, and I do apologise to Justice Nettle for not being as direct as I would like to be.  The short answer is if we win this argument we wish the matter to be over.  Of course your Honours understand why.  The best way for it to be over is by an order of this Court entering acquittal, for reasons which I will not repeat, but we say are sufficiently demonstrated if we succeed in an appeal. 

If it were thought by the Court that there were possibilities that required further consideration before one moved from finding error to entering the acquittal then, in our submission, at least at first that should be proposed to be done in this Court, not least because there is no extant suggestion that there is any consideration of expediency against that happening, that is a truckload of material to be sifted through with the

appellant equivalent of a jury address about it.  That is not in question.  This is an appeal from an appeal.  It is not a first appeal from a trial.  I hope that answers your Honour’s question.  Those are my submissions. 

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 4.52 PM THE MATTER WAS ADJOURNED