Pell v The Queen

[2020] HCATrans 026

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 WEDNESDAY, 11 MARCH 2020, AT 10.02 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS R.B. SHANN, for the applicant. (instructed by Galbally & O’Bryan)

MS K.E. JUDD, QC: If the Court pleases, I appear with MR M.J. GIBSON, QC and MS A.S. ELLIS for the respondent. (instructed by Office of Public Prosecutions Victoria)

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the trials that took place of the shocking allegations of appalling misconduct took place about 22 years after the alleged offending. At the first of the trials, the jury could not agree. At the second of the trials, the jury returned the verdicts of guilty, which were the subject of the appeal to the Court of Appeal.

The evidence of the complainant, one of the two alleged victims, was recorded and thus available at the second trial in the same form exactly as it was deployed at the first trial. At both trials, relevantly now of course the second trial, during the trial the evidence of the complainant was the only evidence to the effect that the offending had occurred. Tragically, the other alleged victim had died. The evidence, such as it was, of his position concerning the alleged offending contradicted that allegation.

The Crown had called a number of witnesses because of a striking circumstance or combination of circumstances which characterised the trials and the appeal and that is that unlike so many appalling historical sexual misconduct cases the alleged offending had taken place in a milieu quite different from the usual secluded, secretive or completely private setting of so many of those offences.

True it is that in the so‑called first episode the two victims and the alleged perpetrator are said to be alone in the priests’ sacristy of which your Honours will have read so much. But in order to be so alone they had to become so in a setting which was crowded with participants in formal liturgy involving 50 or so participants, particularly in a procession and the processes of disrobing from liturgical vestments, all in a vicinity which was, on the evidence, a hive of activity at critical times and places casting an adverse light on the reasonable or realistic opportunity for that first episode to have taken place. The second episode is not alleged to have been secluded at all, but rather to have been a violent assault in the midst of the end of a procession.

These were striking differences between what might be called the typical covert violence and misconduct of sexual abuse in many cases, and what was alleged here. It was therefore in the nature of the allegations and a fair trial of them, as was fully appreciated by the Crown, both trials and on the appeal, that it went without saying that the Crown would call witnesses who were in a position, both physically and by their observations and their roles, to give evidence one way or the other concerning the alleged misconduct, the alleged offences.

As your Honours know, and we need to come to the detail, a number of those witnesses importantly gave evidence that contradicted the realistic opportunity for the offending, particularly the first episode, to have taken place, and there was no witness as to the second episode present on the alleged occasion who had seen anything of the kind alleged.

Strikingly, it was appropriately recognised by the Crown before the trial that those were witnesses, the content of whose evidence would be adverse to the prosecution case, that is, would tend against guilt, in such a way as to enliven the possibility that the court would exercise a discretion so as to give leave for the Crown, calling those witnesses, to cross‑examine them, to challenge them on their evidence.

KIEFEL CJ: The trial judge gave such directions in the case of five witnesses.

MR WALKER: Yes. The detail is set out in the parties’ respective writing and may be summarised as follows, for material purposes at present. In granting leave, after full argument concerning the occasion for it to be considered, the judge noted, indeed, emphasised as part of the reasoning for some of the parameters imposed on the exercise of the leave, that the Crown did not intend to allege against the credibility of any of these witnesses, as opposed to, perhaps, what might be called reliability. In particular, as one might expect of witnesses who were after all being called by the Crown, it was no part of the Crown’s position that any of these people were lying.

In the upshot, with immaterial exception – a notion I borrow from observations by the majority in the Court of Appeal to which I will come later ‑ that leave was not availed of, not because there was a volte‑face concerning the Crown’s understanding that that evidence, as a body of evidence and taken individually, contradicted the notion of guilt but presumably for other reasons which need not be and cannot now be known, what is called in the jargon a forensic decision by the Crown not to challenge.

Now, we submit that the way in which the majority of the Court of Appeal dealt with that aspect of the trial upon which the verdicts of guilty were returned suffers, for the reasons that I will develop, from a failure properly in accordance with the law as pronounced in this Court to consider what was open to the jury upon the whole of the evidence, an important matter of principle, sometimes rendered by criticism of a so‑called piecemeal approach. That is important for the first point to which I wish to come by way of elaboration, namely the compounding improbabilities by the so‑called obstacles to finding the offences proved, which is the first topic of my address.

The second error in the majority of the Court of Appeal was the effective reasoning that the defence contesting the existence of a realistic opportunity did so in terms which proposed the impossibility of the events having taken place as alleged in the Crown case and, thus, the majority reasoned wrongly, fundamentally wrongly, if rather than impossibility a possibility was left on the evidence then the offence could be regarded as proved once, as obviously did occur, the jury believed the complainant. We submit, and will elaborate, that that amounts to a reversal of onus and, most importantly, a misapplication of the essential protection provided by the requirement of proof beyond reasonable doubt.

Your Honours, the “Compounding improbabilities” – proposition 1 in our outline – attaches to the necessity or circumstances to line up in particular ways in order, particularly in relation to the first episode, but for both, for the offending to have taken place at the time and at the place where they are alleged to have taken place. The trial was run in such a way that it was clear to the jury that that was a necessary consideration for them before they could return verdicts of guilty. Could I take your Honours in the core appeal book, please, to its page 43?

EDELMAN J: Sorry, which page was that?

MR WALKER: Page 43, the charge by the learned trial judge to the jury. Picking it up at line 8 on that page, your Honours will see the admonition to consider all of the evidence and then at line 13 a matter central to the facts in this case, what his Honour called:

the evidence from all the church witnesses about processes, practices and recollections as to how things worked around Sunday solemn mass.

I will come back to that important matter later. Then his Honour correctly addressed as to the issues in that trial that the evidence from them:

goes to the issue as to whether there was a realistic opportunity for this offending to have taken place.

Then, an important passage, starting at line 21:

that opportunity includes –

and I will not read it all – your Honours have seen this set out in a number of places – but a long list, which continues over to halfway down the next page so as to encompass both the first and second episodes. Importantly, the jury was directed at page 44, lines 22 and following, that the complainant’s:

account requires each of these opportunities to have arisen and to have occurred.

Hence, as your Honours will appreciate, the notion of compounding improbabilities.

As Justice Weinberg pointed out in his dissenting reasons in the Court of Appeal some care should be taken about too mechanistic an understanding of the notion of compounding improbabilities, given that some of the separately expressed circumstances may in fact be co‑dependent. But that is a detail and says nothing to diminish the force of the notion of compounding improbability, which starts from the proposition that his Honour put to the jury, correctly and forcefully, namely, the complainant’s account, meaning acceptance of the complainant’s account as contributing to proof beyond reasonable doubt ‑ ‑ ‑

EDELMAN J: Are you submitting that the compounding improbabilities include all of those relating to the first event, as well as all of those relating to the second event?

MR WALKER: No, I certainly do not wish in any pseudo‑Bayesian fashion to attempt a switch between first and second episodes. It is a familiar proposition to a jury in cases like this, recognised by this Court I think in SKA, for example, or perhaps in M, that a loss of faith in the version about one offence can properly be taken into account in relation to another offence, although of course there are always cautions and appropriate admonitions not to overlook the possibility of what I will call disparate degrees of credibility and reliability in the same witness’ accounts of different events. So, no, I am not going to attempt to link the first and second episodes in terms of compounding improbabilities. Then, on page 45, in his Honour’s charge, there is a fair paraphrase of an argument for the defence – this is line 6 – which was:

the evidence establishes that these opportunities were either improbable, not realistically possible or indeed impossible. So various phrases, but ranging from improbable through to impossible, and he has taken you to those arguments and pointed out evidence to you . . . In any event . . . at best these are theoretical possibilities . . . this is not enough for a criminal case.

Then, dropping down again, line 27 on page 45:

clearly not enough that you think that this account is merely possible or even probable.

Now, that does not exhaust where his Honour, with respect, impeccably instructed the jury as to the way in which both the onus and the standard were to be observed by way of elementary protections of the integrity of a criminal trial but they are important in the context of these improbabilities.

Could I take you then, immediately, to the way in which our argument to this effect was understood by Justice Weinberg in the Court of Appeal. In the core appeal book, could I ask your Honours to turn, please, to page 421, picking it up at the foot of that page in his Honour’s paragraph 840. In paragraph 841, in a dot item list, these matters are catalogued.

May I touch on a few of them because of their significance for our later argument - “the applicant does not remain on the front steps” is a reference to evidence to the effect that halfway during the procession down the nave towards the west door the liturgical participants, at the end of whose procession would come the archbishop, would depart the west door on the occasions in question to go outside the cathedral and down towards the entrances to that part of the structure which included the sacristies and the choir room, but that the archbishop and an attendant or two would remain at the west door, what might be called the exit of the cathedral, in order to, as was put colloquially, meet and greet, in any event, in order to be available to deal personally, talk face to face with parishioners as they left.

Remaining on the front steps then was one of the activities, one of the circumstances at the heart of the notion that there was practice, and probabilities or possibilities of practice being observed, on the days in question which would, as the procession continued out the west door and down the outside of the cathedral building, leave the archbishop at the west door with, as I say, one or more attendants.

The significance of that is clear for the first episode, bearing in mind that it comes sometime after the procession had reached about halfway down the cathedral building’s outside, so as, on the complainant’s allegation, to produce then the action of the two boys peeling off from the procession, finding their way to an opened and unattended priest’s sacristy, where the Archbishop allegedly came in, alone, and robed, and committed the offences alleged on that occasion.

Clearly, for that realistic opportunity of such offending to exist one must know where, at the relevant times, not only the complainant and the other alleged victim were, on the complainant’s version, but where the evidence, taken as a whole, could have the Archbishop and the front steps, on the evidence, was an activity simply inconsistent with the timing necessary for the alleged offending. I will come back to elaborate that.

So that is the significance of the first of those items. It is a key point, and it is a sufficient point. When we use, as Mr Richter did, the expression “compounding improbabilities”, it is to be recalled, of course, that an improbability which simply contradicts the possibility of something occurring is one that can have an individual and sufficient operation against a finding of guilt beyond reasonable doubt.

The next two, next three, I should say, dot items in that list refer to a matter about which there was unchallenged evidence, as so much of the evidence was in this area, concerning the attendance on the Archbishop when robed, in the cathedral premises, in such a way as to contradict that circumstance necessary for the alleged offending to have occurred as the complainant had testified, namely, in a room with the Archbishop robed and alone.

Then the dot items, starting with the expression “Potter is not moving between the sanctuary” and going to the next two, refer to an element of practice about which there was evidence to which some detailed reference must be made, bearing in mind the way the Crown now seeks to argue the matter, giving rise to a circumstance that became dubbed, from a reference in the evidence, “a hive of activity”, and it referred to the fact that the sacristy in question was a location to which the so‑called servers came at the end of the procession, and then moved to and fro between it, the sanctuary, and other places, in order to clear away holy vessels and the like and to deal with other matters arising at the end of a solemn mass, a circumstance manifestly at odds, contradicting the necessary circumstance for the offending to have taken place as alleged by the complainant, namely an undisturbed seclusion in that room of the Archbishop of the two choir boys for the five or six minutes necessary for the offending.

BELL J: Mr Walker, did the evidence establish that the altar servers processed on occasions when the procession was outside the cathedral, outside with the others forming part of the procession and did they then go into the sacristy to bow to the cross, having completed the procession?

MR WALKER: Yes.

BELL J: Thank you.

MR WALKER: There is more detailed evidence about the positions and movements of participants in the liturgy, starting with what I will call the beginning of the procession inside, and your Honours will recall references to the interval for private prayer, for example, to which I will come later. There are persons other than simply the servers in procession, to which reference needs to be made, but my answer remains as I have put it to your Honour, yes.

BELL J: Thank you.

MR WALKER: In that dot item list of compounding improbabilities in Justice Weinberg’s paragraph 841, your Honours will see the last – those between lines 30 and 40, the third and second last, refer to what I will call a circumstance, striking in this case, of events allegedly taking place in the company of many others, in the close proximity to many others - that is what those two refer to.

Then one has the last one which, as it were, bookends the improbability to the point of practical or realistic impossibility with the first of the dot items – let me explain. The last one refers to a “choir rehearsal”, and as the evidence to which I will come in more detail shows, on the complainant’s version, there was entry to a room where others were in the course of – others had departed, and others were in the course of getting ready to depart, inconsistent with what the evidence revealed more likely to be the case, namely that these, the days in question, were days when there were in fact being held, choir rehearsals. I will come back to ‑ ‑ ‑

EDELMAN J: Was that just due to the flyer, or was there any other evidence other than the flyer that the choir rehearsals were held?

MR WALKER: It is accepted and was accepted by leading counsel for the Crown on the appeal that the court should proceed on the basis that that which had been scheduled took place. I think that means the evidence concerns the promulgation of a fixture on those days of choir rehearsal, and I do not think the Crown – I am sure the Crown never pursued the notion that that which had been scheduled did not take place and, very properly, Mr Boyce in the Court of Appeal said the court should proceed on the basis it had taken place.

What I have just referred to in answering Justice Edelman is to be found in the exchange between Justice Weinberg and Mr Boyce, contained in the applicant book of further materials at page 103, picking it up at line 11; I do not need to take you to it.

Now, your Honours will note in Justice Weinberg’s paragraph 843 that in the Court of Appeal, in documents which came to be called schedules of evidence, which I am afraid to tell your Honours, were argumentative on both sides – more than mere schedules ‑ this matter, this list of circumstances that had to be made out in order for the prosecution to make out its case, some of which would on their own if not made out destroy that case – that is intrude reasonable doubt that could not be overcome ‑ was not, in terms, addressed by the Crown.

I will seek at a later point in my argument to develop this proposition concerning the majority in the Court of Appeal, namely, that in what might fairly be called a piecemeal or one by one approach, their Honours deal with these circumstances, concluding in each case that that which had been described by the defence as impossible was not impossible – that is, was possible.

GORDON J: Is that any more to say, though, on your analysis they have asked the wrong question?

MR WALKER: No. Your Honour asks is there anything more to say ‑ ‑ ‑

GORDON J: No, no, I am putting it in a sense is that ‑ ‑ ‑

MR WALKER: That is it. That is a wrong question which sends the inquiry off in a terribly damaging wrong route, because one can imagine the objection to a trial judge’s direction to a jury that they should proceed in such a fashion. It is every bit as egregious when, in asking and seeking to answer the question what was open to the jury, an appellate bench under the common form criminal appeal provision asks simply the question whether what the defence said was impossible might instead be possible.

KIEFEL CJ: As I understand your argument, the majority in the Court of Appeal do this in the second phase of their inquiry, the first phase being devoted purely to credibility.

MR WALKER: Yes, yes.

KIEFEL CJ: The question in M on your argument is split into two; that is in M v The Queen.

MR WALKER: Yes. Your Honours, lest there be imprecision on my part in relation to the idea of two steps or two stages or two questions, can I explain how we understand the matter? The Chief Justice asked me about the majority considering questions of credibility before moving to questions of what I will call probability, that is, of contradictory circumstances. That indeed is a way in which both the majority and the dissent in the Court of Appeal, no doubt reflecting the way the parties had argued it, addressed questions calling for decision on the appeal. But the two stages is also – or two questions is also, of course, a shorthand way of describing the orthodox understanding of the test in M, re‑expressed as later cases have suggested it should be re‑expressed without altering its substance.

That second step in M is, of course, designed to deal with the matter perhaps most clearly thrown up by, say, Justice Dawson’s, if I may say so, cogent commentary upon Chief Justice Barwick’s reference to there being no need for circumlocution about there being an equivalence, as it were, between a doubt felt by an appellate bench and a doubt that should have been felt by a jury, in the course of which jurisprudence this is not in contest in this Court in this case and, with great respect, the reasons of Justice Weinberg, if I may say so, constitute a masterly synthesis of the position that is now orthodox and not in doubt so far as the parties here are concerned.

The second stage in the modified M test reflects the possibility, clear as a matter of commonsense and human understanding, that the appreciation in an appellate court of the state of affairs concerning the raising and leaving of reasonable doubt does not in every case have the same facility or amenity informing it as is available to a jury. This is not just a credibility question, but obviously it is a matter on which in our case we say the second stage barely arises because it would be an extreme fallacy for anyone to suppose that the credibility of a complainant will supply by outright circularity an answer to reasonable doubt raised by evidence to which the complainant says nothing.

BELL J: When you talk of, as it were, the first aspect, or the first step of the M test, if one is to break it up in that way, is it not preferable to say that the Court is there looking ‑ in the case of a sexual offence involving the evidence of a complainant the Court is looking ‑ well, rather than breaking the test up, let me put it in terms of the whole test.

MR WALKER: Yes.

BELL J: The Court is not concerned with credibility since the jury, having convicted, it must be accepted that the jury was satisfied of the credibility.

MR WALKER: That is the premise ‑ ‑ ‑

BELL J: It is more the reliability of the evidence, having regard to inconsistencies or other imperfections.

MR WALKER: With one qualification, yes, can I explain the qualification?

BELL J: Yes.

MR WALKER: Of course, one appeals against convictions following verdicts of guilty, and in a case such as Justice Bell has posited, of which this is a fair sample, that involves the prosecution, by inescapable inference, having persuaded the jury to believe ‑ that is credibility ‑ the complainant. Thus, belief in the complainant is a premise of an unreasonable ground of appeal in such a case; it is not an answer to it, that is absurd. In a sense, in many cases, that will really mean that it is reliability, rather than credibility, which will be the focus of the consideration of the evidence as a whole and what was open to the jury, given the standard of beyond reasonable doubt.

However, may I say this. That a jury, or indeed a judge, believes a witness does not mean that the witness was telling the truth. Let me explain. It does not mean that all of us, when we say, in or out of court, that we believe something are therefore also saying, let alone making true, the fact that we cannot be wrong in that to which our belief leads us.

GORDON J: Is that any more to say, though, in response to Justice Bell’s questions, that reliability is consistent with the M test tested against the whole of the record in order to identify whether or not there are the discrepancies, inconsistencies, or lack of probity that would lead to the conclusion addressed in M?

MR WALKER: Yes, all of what your Honour Justice Gordon has put to me is certainly an important part of the way in which we argue the majority erred, but, no, what I said in answer to Justice Bell is going rather beyond that and saying, yes, of course reliability is a critical aspect of any such appeal, and its argument, and its decision, but I am saying as well, credibility does not therefore leave because the co‑existence of a reasonable doubt in relation to an allegation where the complainant has been believed is de rigueur, it is in the nature of the exercise involved when one asks, do I believe this witness? Justice Brennan, in Liberato, with respect, has classically explained how that must be so. The belief does not drive from the field the possibility of reasonable doubt.

BELL J: The matter I was really taking up with you, Mr Walker, and it may be some difficulty I have with the endeavour to develop M into a two‑stage test, is when you look at what the Court is doing, I suggest, on a view, it proceeds in a case such as this, upon acceptance that the jury were satisfied beyond reasonable doubt that this was a truthful witness. The appellate court, in the ordinary case, reviewing the record, is not in a position to make an assessment of what we often describe as credibility. What it is looking at is, was it open to come to that conclusion, having regard to these other matters?

MR WALKER: Yes.

BELL J: So that the starting point I am putting to you, Mr Walker, is acceptance that the witness impressed as a truthful witness.

MR WALKER: I think we have made that crystal clear and explicit in our argument from beginning to end.

BELL J: Yes.

EDELMAN J: In other words, the first so‑called limb of the two‑stage deconstruction of the M test is not to be understood literally. In other words, it is not to be understood as requiring an appellate judge to look at the whole of the record as if they were the jury and make an assessment beyond reasonable doubt as to whether or not guilt had been proved.

MR WALKER: I think the answer to your Honour’s question must be yes, but that does not mean that there are not critical parallels required in the consideration by an appellate judge of what I will call a jury view of the material because, after all, for the appellate judge the question is: what was open to the jury?

The point I am trying to emphasise is that the appellate judge is not, in our submission, required in order to uphold an appeal to say that the jury should not have believed the complainant. That is an impertinence, with respect, institutionally by the appellate judge. It is a fact the jury did. Rather, should they have returned a verdict of guilty? That is the supervisory role of the appellate bench and that is why I am at pains to point out that belief in a complainant does not eliminate the possibility of co‑existing reasonable doubt as to guilt.

In this case that is very significant because it can hardly be said without committing an egregious circularity that the evidence upon which we rely and to which we pointed in the Court of Appeal, and which persuaded Justice Weinberg in accordance with our argument, that that could all be, as it were, answered – that is, the doubt engendered by it and appropriately felt by an appellate court – could be eliminated because the jury manifestly had been impressed by the complainant, because the complainant’s evidence simply did not go to these matters at all.

What did the complainant say about the practice, the duration, the currency of the critical location of the Archbishop at the west door, having allowed the procession to go on without him? Nothing is the answer and so in this case as it happens, the so‑called “second stage” of what is truly always just one inquiry in M does not arise.

Unless I am much mistaken – and I could be amidst all this material – I do not think in this case the Crown suggests, say, with respect to the west door location, that there was any such advantage for the jury to be gathered from those things which the jury enjoyed that an appellate court cannot.

It is at this point that I should at least recognise matters which your Honours have raised with both parties before the hearing in relation to the particular course taken. I have already noted that the evidence of the complainant was available to the juries in both cases in recorded form, and was thus available to the Court of Appeal in exactly the same form.

Now, the Court of Appeal is not the jury. The Court of Appeal does not proceed, for example, by unanimity and the Court of Appeal gives reasons. That does not exhaust the fundamental differences between the Court of Appeal and the jury, but it begins to point to the fact that it is a radical difference.

Functionally they are, for the reasons I have tried to point out earlier with respect to the Court of Appeal and the jury’s implicit credibility finding, credibility conclusion, they are not the same, and in short it is no mere rhetoric, with great respect, for it to be repeated in this Court and other places that the common form appeal provisions do not amount to a substitution of trial by appeal bench in place of the appropriate trial by jury.

Now, your Honours, we were asked about whether the availability of the complainant’s evidence in that manner to the Court of Appeal in any degree affects what I will call the test or the rule in M. I do not want to elaborate, unless your Honours wish to raise particular aspects of it with me, the way in which we have answered that in our supplementary written submission, which I urge.

In short, in our submission, the availability of parts of evidence nowadays under modern statutes, in particular certain kinds of witnesses or complainants, will not appear in the flesh viva voce before a jury, and will thus – their testimony will be before the jury in a manner that can be, apart from the atmosphere of a trial itself, reproduced, replicated in cameo in a Court of Appeal.

Worse, if I can put it this way, nowadays whole trials are recorded. There ought never be an occasion for a jurisprudence of the cinematography of a criminal trial. What account, if any, should the judges take of what cameras and how they operate in a court room? In our submission, that is a most inappropriate devaluing of the functional difference between a trial before a jury, however the evidence is presented there, and the examination of the particular question which the common appeal provisions provide for in accordance with M.

In particular, those what I might call changeable. We know in the careers of everyone in this case, we know that there have been changes just in that time, and they are all inherently changeable. The system may go back to no recorded evidence, for example. That is one of the reasons why, in our submission, the particular way where from time to time and place to place in this Federation, evidence is available first of all to a jury and then to an appellate judge should not permit of any departure from the approach in M.

Of course, when it comes to what might be called supplying the content of the application of M, then it may well be that the circumstances such as the Court of Appeal can see for itself what happened to the blood vessels of the face of a witness when confronted with something - one of the headline possibilities that occasionally are said to privilege a jury; the judge does not see the witness blush - well, maybe with decent enough video recording the appellate judges can see the witness blush.

But that does not change the test in M; it may simply make it more difficult or more straightforward, according to the fine‑grained particulars of a particular case, or one or other of the appellant or the respondent to succeed in its arguments about whether a verdict of guilty was open in that particular case.

BELL J: Mr Walker, here the applicant opposed the Court of Appeal viewing the video recording of the complainant’s evidence but submitted if that course were to be adopted then, as a matter of balance, the Court of Appeal should view the evidence of other important witnesses. Now, I think, under the Criminal Procedure Act 2009 (Vic) the recording of the complainant’s evidence is made admissible on the appeal under section 379. What is your submission respecting the basis upon which the recording of the evidence of other witnesses is open to the appellate court? Does that recording form part of the record and does the recording of the complainant, under section 379, form part of the record?

MR WALKER: With great respect, Justice Bell’s question raises fundamental matters that we have not addressed in our written submission. I accept that. The record, as Justice Bell has used the expression, is of course that which is necessarily available to the appellate court, that which is being reviewed for the statutory jurisdiction to be exercised. The record traditionally includes notes or transcripts of evidence.

I am afraid I just do not know any superior court having decided whether a video‑recorded trial, as now occurs from time to time and place to place, is official in the sense of becoming a record of the trial. It is plainly not private, and I do not think anyone has suggested it is unauthorised, though it not being private and it being authorised, it seems to have an existence only because it constitutes an audiovisual and not merely transcribed written record of, among other things, evidence. I say “among other things” because it will include argument, no doubt.

GORDON J: In the past it would have been limited possibly to transcripts and exhibits.

MR WALKER: That is right. The record used to come up to this Court in dog‑eared folders wrapped up in red tape, which is perhaps not quite so straightforward when one comes to the digitised recordings which would be in question in this case. I think I would be old‑fashioned even to use the words “tapes” or “discs” nowadays, probably.

EDELMAN J: Would there be any difficulty with the converse situation to that which is referred to in the so‑called second aspect of the deconstructed M test, where an appellate court is in a superior position to a jury because the appellate court, for example, is able to follow witnesses’ evidence by video recording, watching it several times accompanied by a transcript of that evidence and so on.

MR WALKER: Your Honour, the short answer which is, if I may say so, evasive is perhaps, but can I explain. One of the problems with positing possible differences for an appeal court and a jury in that regard is that juries do get transcripts into the jury room nowadays, when once upon a time that would have been very uncommon or even regarded as not right. So it is no longer the case that the jury will only have their recollection of the evidence being given and what counsel and the judge have said about the evidence when they talk about it in the jury room.

Where there is recorded evidence, obviously the possibility exists that depending upon dispositions in a particular trial that will be more than simply a transcript. That is certainly obviously true when exhibits include, for example, CCTV footage. If the jury is entitled to have an exhibit to examine in the room, that will include the possibility of playing the CCTV footage.

KIEFEL CJ: Would a jury, though, commonly be subject to directions from a trial judge about not overusing the use of ‑ repeat and repeating the viewing?

MR WALKER: Yes, and one hopes that would be ‑ ‑ ‑

KIEFEL CJ: Would you apply that to an appeal court?

MR WALKER: I would not be brave enough, your Honours.

KIEFEL CJ: I was not talking about this Court.

MR WALKER: Well, in a Court of Appeal, with respect, it would not be for counsel ever to say “Your Honours can watch this three times”.

KIEFEL CJ: But would you expect an intermediate appellate court to restrict their viewing in a way in which a jury would ‑ ‑ ‑

MR WALKER: No, I would not. No, I would not. If I may so, their Honours should examine transcript, exhibit, footage – I think even that is an old‑fashioned word now – audiovisual recording ‑ ‑ ‑

GORDON J: Sorry, I am just unclear - what do you ‑ ‑ ‑

MR WALKER: Exactly as they wish to and as much as they wish to.

GORDON J: What do you mean by audio ‑ ‑ ‑

MR WALKER: If it is in the record, I should say.

GORDON J: I was going to say what do you mean by “audiovisual recording”?

MR WALKER: I mean if it is in the record. So nowadays so many of our activities are recorded by CCTV and the like that the exhibits in a criminal trial will often involve a call for ease of reference footage of the fight.

GORDON J: But that would be an exhibit ‑ ‑ ‑

MR WALKER: Quite so.

GORDON J: ‑ ‑ ‑ tendered as evidence.

MR WALKER: Quite. As the Chief Justice points out, prudence would ordinarily suggest the jury be counselled against poring over that in a disproportionate fashion but, no, there ought to be no such approach with respect to judges. It is not thereby the judges get a superior faculty of appreciating the evidence. It is just that judges bring, professionally and by the office they discharge, to bear a different both requirement as to what they are to do and the capacity to do it.

KIEFEL CJ: But for an intermediate appellate court, is there a threshold question of whether there is a need to view this material which is perhaps guided by decisions such as SKA v The Queen?

MR WALKER: Yes, and there I simply do adopt – we have addressed that in our written submissions and our position is that there needs to be shown a need, and that does not have to be expressed an obligation as opposed to a discretion. There has to be justification and because it is not for the appeal court to substitute itself as a second tribunal of credibility - credibility is the premise of the appeal – then, in our submission, there was no need. That was our primary position at trial.

It is our primary position – I am sorry, it was our primary position in the Court of Appeal. It is our primary position here, and so the fallback where Justice Bell’s question raises difficulties for us – I do not mean for us as a party; I mean for the system at the moment – is one which falls out of SKA. It was hypothetical in SKA. One of the reasons for rejecting the bold proposition in that case that there had been a failure of process because something that had to be seen had not been seen – one of the reasons was a consequentialist one. Well, if that much, is there unfairness which would require other material really to be involved as well?

Their Honours in this Court did not have to – it was not before the Court – trace through, well, in that case is there any difference between the recording which was the subject of the unsuccessful appellant’s assertion that it had to be seen, and the recording of other material that might hypothetically have been required to supply context or balance, as their Honours put it.

As I say, I do not know of any authority about this. I do not think it has been looked at. Certainly our researches have not thrown it up. In principle, in our submission, the nature of judicial process would take as an authorisation to look at material the canon of fairness and, if it would be unfair that a bench, say, might be impressed by the recording of a sliver of proceedings as opposed to other material then, in our submission, there would be jurisdiction, that is, power, to do what we submitted by way of fallback. I stress it was fallback.

It was only if we are wrong in our preferred position that we said, making the best, as it were, of a bad thing, that other material should then be looked at. I accept that that may be, as it were, increasing the vice that we had primarily argued against, that is, if it is wrong to look at something it is worse to look at even more. But that was a choice we made and, in our submission, the choices we made do not case much light on the principles.

BELL J: The Court in SKA left open that there may be a legitimate forensic purpose for an appellate court to look at the recording of a complainant’s evidence.

MR WALKER: Yes.

BELL J: But, and in that context, noted the issue of balance, that such a process would involve.

MR WALKER: Yes.

BELL J: Coming back to the test in M, that test has always contemplated that the review function of the appellate court is to identify either inconsistencies or some other evident deficiency in the evidence of a complainant, in a case such as this, or the presence of other evidence raising a doubt. For my own part, I have some difficulty seeing how the application of the test as I understand it in M is assisted by viewing the evidence as it is given, which involves considerations of demeanour‑based assessment of credibility.

MR WALKER: That is our position. We urge that, with all the force I can muster, that there are reasons of principle, high principle, to do with the different function of an appellate bench under the common form provisions, on the one hand, and there are also what I am going to call expedience questions that we have noted in our written submission, which are not foreign to the development of principle concerning the conduct of an appeal. There must be an end of things, and the questions some of your Honours have asked me about, well, if a jury should be advised not to spend too much time looking at the screen over and over and over, is it different for a judge? I have said yes, it is different for a judge.

With a fully recorded trial, and if it were held against us, against our argument, that that is appropriate material to look at, the hearing of an appeal will not unrealistically extend longer than the trial, and when I say the hearing I should have said the hearing and disposition of an appeal, and that does not sound a sensible pyramidal view of the administration of justice, where we are required to be specific as to our complaints about the outcome below and the process that produced it in order to produce focus, rather than diffusion and, in our submission, both practical and principled considerations urge against the opening of the door that SKA held had not already been compulsorily opened. We would now go and say that it should not be opened as a matter of discretion either.

GAGELER J: Mr Walker, are there degrees of credibility?

MR WALKER: Yes, there are degrees of credibility.

GAGELER J: Is it open to an appellate court to take a view as to the degree of credibility of the complainant?

MR WALKER: Yes.

GAGELER J: On one view, a major difference between the majority and the minority view in the Court of Appeal was the court’s or the judge’s own view as to the degree of credibility of this complainant that is alluded to really in paragraph 843, to which you have taken us.

MR WALKER: We have noted it in our argument, yes. That is a difference. I would, with respect, dispute the proposition that that is an explanation of the difference because the real explanation of the difference is the elimination by the majority, one by one, of the so‑called obstacles on the basis that that which was said was not a realistic opportunity was in fact possible.

Justice Weinberg takes, in our submission, the correct and principled proposition which says merely possible cannot possibly eliminate a reasonable doubt raised by this material, bearing in mind the striking fact that we do not need to be, cannot be applying credibility questions to the witnesses who gave evidence of those circumstances. Credibility in this case really only applies to the complainant. Justice Gageler, with respect, is right. In accordance with the position that the court held, that is the Court of Appeal held, pre‑hearing, against our opposition, they all viewed the recorded testimony of the complainant.

So it meant that in principle, as we have both in that court and here maintained consistently, the risk was introduced - not so much by looking at the material because this notoriously can happen just by reading transcript, people form impressions of credibility - that the false logic would apply that if I believe a complainant - if I believe a complainant, be I a juror or a judge - then evidence said to raise a reasonable doubt, that is, inconsistent with what belief in the complainant would produce, may be discounted in such a way as to amount to saying as to the question does belief in this complainant prove beyond reasonable doubt guilt, I answer it by saying, “I believe in the complainant”. That is the circularity.

That is the matter of judicial method which is at the base of our argument concerning the real difference between the majority and Justice Weinberg. That is a long‑winded way of answering Justice Gageler: no, that is not a satisfactory explanation of the difference, though it is a difference between the ways they approached the matter.

BELL J: And it is a difference that was thrown up by the circumstance of viewing the evidence and forming views as to matters of credibility as distinct from the capacity of the whole of the evidence to establish guilt.

MR WALKER: Exactly so, with great respect. It was one matter I should have added by way of qualification to my answer to Justice Bell’s last but one question. The whole matter is not believing beyond reasonable doubt the complainant’s credibility; that is a shorthand that may mislead. That to which beyond reasonable doubt attaches is the proposition of guilt on the whole of the evidence.

GORDON J: In a sense, is that not the imbalance or undue influence aspect of SKA?

MR WALKER: Yes. That is the most plain way of demonstrating the inappropriateness of these artefacts being viewed selectively because it is as it were falsely to say the judges are embarked upon the same exercise as the jury and they are not, for the reasons we have written that I put today and that the authorities made clear.

KIEFEL CJ: I note the time. It might be a convenient time for the Court to have its break.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, could I add this observation to answers I have given to each of Justices Bell and Gordon. In a case like the present case, where the belief by the jury in the complainant’s testimony is manifest and where the function of the Court of Appeal is not to ask the non‑statutory question, “Was it open to the jury to believe the testimony?” the application of M comes down to this. The appeal bench asks itself this question: whether the jury, having believed the complainant, it was open to them to find guilt beyond reasonable doubt which, in accordance with the way the authorities have occasionally expressed it, involves this proposition, whether the jury having believed the complainant’s testimony, nonetheless, on the whole of the evidence they must have felt a reasonable doubt.

That, in our submission, appropriately provides the safeguard intended by these common criminal appeal provisions against that which is true in the real world, both in and out of court, namely, that the people we believe may be wrong. They are either lying and doing so in a way no one detects – that is known – or simply wrong, with a whole spectrum of possibilities as to why the error was perpetrated, and that is why, in our submission, the way in which the majority proceeded inverts and distorts the proper question.

We have tried, in paragraph 49 of our written submission to distil the proposition that we unsuccessfully asserted below and repeat here, that what we have called accurately the unchallenged opportunity evidence could not or did not exclude the reasonable possibility that the routines and practices were in fact not departed from in one or more of the required ways on the relevant dates.

It is, in our submission, absurd to reason that because nothing in human systems is without fault and therefore any practices, even those boasted of as invariable, may not always be followed, and thus it is possible it was not followed, that that eliminates the weight or cogency of evidence about the practice having been followed on the occasion in question was such as to raise and leave, bearing in mind no answer or challenge to it, a reasonable doubt.

We have drawn to attention in paragraph 49 and in footnote 15 a matter that I will try to deal with once and only once. The significant forensic disadvantage warning for this trial, 22 years after the alleged events, with the inexorable effect of the passage of time on the availability of people and people’s memories and cognitions, and for that matter records, is given not in order to ease the burden of the prosecution.

It is, as Justice Weinberg points out in a manner which is by no means controversial here, that is a warning to the jury in giving particular point to the burden and standard of proof that must be discharged by the prosecution and thus of its nature and as a safeguard in the system is intended for the benefit of the accused, not personally but systemically, lest people be convicted who, about whom, there ought to have been held a reasonable doubt concerning their guilt.

Now, as we have noted in our footnote 15 ‑ I will not take your Honours to the passages we have cited in that footnote in the majority’s reasoning ‑ there is a repeated reference by way of amelioration of what might otherwise be at the least unreliability in the complainant’s testimony, carried out by the majority on the basis of the very kind of factors that would ordinarily in a significant forensic disadvantage warning conduce and conduce only in favour of the accused. We submit that that was a wrong approach to the elimination, or not ‑ what was open or not to the jury, given the standard of beyond reasonable doubt.

It is, in our submission, an inversion of the proper approach to say of the complainant’s evidence – which, as I say, was believed by the jury ‑ to say, as it were, bolstering that and the discrepancies, disparities, and what on any view must have been errors in it, do nothing to and then it appears – the reasoning for the majority is – do nothing to detract from its credibility, but I stress the question was whether, taken as a whole, all of the evidence, including that testimony, was such as to require the jury to have regarded reasonable doubt as having been raised and left.

In the reasons of Justice Weinberg, at page 472 of the core appeal book, starting at paragraph 1061, your Honours will see Mr Richter’s argument at trial concerning the unrealistic opportunity – what his Honour fairly paraphrases as an argument concerning a number of independently impossible things. Could I draw to attention, in relation to the next paragraph, the proper qualification, with great respect, that his Honour makes in footnote 262 to which I made reference in opening the appeal. We are not engaged in a Bayesian exercise in truth, we are engaged in an understanding of that which was open, acting reasonably, to the jury.

As his Honour points out, if I may say so, perhaps rightly in paragraph 1062, this is sauce for the goose, sauce for the gander. Prosecutors obviously, and should, because it accords with proper reasoning, take into account when, for example, urging against what might be regarded as a cock‑and‑bull story on the part of the defence, that it is replete with compounding or is characterised by compounding improbabilities. This would have to be, and that would have to be true, and this other thing would have to be true, and what are the changes, et cetera. Well, it certainly applies, indeed is a very important part of the ordinary non‑technical mental armoury of a jury in examining the whole of the evidence and asking the question about beyond reasonable doubt.

In paragraph 1064, his Honour points out the narrowness of the logical window. I do not need to read it in detail but this, in our submission, is right at the heart of the issue before the jury, and thus before the Court of Appeal, concerning what was open to the jury. His Honour concluded that arising from that exercise, there was suggested strongly to him:

that the jury, acting reasonably, on the whole of the evidence in this case, ought to have had a reasonable doubt –

and in 1065, the fact that that was not the only leg on the stool is made clear. The mode of reasoning with respect to the appellate approach to what was open to the jury, given the onus and burden – and standard, I should say, of proof – is particularly emphasised by the pair of propositions you find in 1065. First:

the complainant’s account could not possibly stand if the evidence given by Portelli, or Potter, were to be accepted.

Your Honours have seen in writing, and I need to elaborate somewhat, that evidence was not challenged in any relevant respect – if challenged at all, I should say. In our submission, it is not a matter where the Crown has or would ever be at liberty to depart from the position it took forensically at trial in that regard.

KIEFEL CJ: It is put against you, and I think it is the majority’s view, that the witness’ evidence became less certain on questioning.

MR WALKER: To which the short answer is there was no challenge or confrontation of those witnesses by the prosecution to that effect at all. True, there is reference made in address, but at no stage was there an invitation to regard them as insincere or lying or favouring loyalty over truth. None of those points were made. In our submission, the majority went well outside appropriate boundary lines in calling that in aid – without, I should say, then going on to spell out what effect that had or could have had on the jury, to whom these witnesses were left, having been called by the Crown, as witnesses not challenged in relation to lying.

EDELMAN J: I do not think that the majority said anywhere that they were insincere, lying, or ‑ ‑ ‑

MR WALKER: No, they did not, that is my point. They did not. So that observation by the majority simply will not do the work involved and that is because of the next proposition, in 1065:

More importantly perhaps ‑

says Justice Weinberg, and we adopt and urge this:

it ‑

that is, the complainant’s account:

could not stand even if their evidence were assessed as being ‘reasonably possible.’

Your Honours will have noted that the dots are not joined in either the majority’s reasoning or the Crown argument based upon it concerning the matter that the Chief Justice raised with me between any of these supposed observable greater confidence, when questioned by one side than another, in relation to any of the facts to which that evidence went. No one says, in effect, that this is a reason to doubt that Portelli’s practice was to accompany the Archbishop when robed and at the western door.

GORDON J: …..any more, though, than just compel the question what did that evidence give rise to, to satisfy that second proposition?

MR WALKER: Yes, exactly so, and that is where we have the benefit, with respect, of the concession, which I understand is still the Crown’s position, the concession that if the Archbishop, with Monsignor Portelli, were at the west door, as Monsignor Portelli said, then he was not in the position to commit the offences alleged in the first episode which meant, of course, that the question was, could the prosecution make out the case, which required, on the prosecution’s own acceptance of the laws of physics, could they make out a case that Monsignor Portelli was wrong, or the practice of “meet and greet” did not take place on the two candidate dates, 15 and 22 December 1996.

Your Honours have read a deal about that, let me summarise it as follows. It is clear to demonstration that there was no concession from Monsignor Portelli that he lacked a memory, as well as a memory of a practice, that he lacked a memory of those occasions. It would be, with respect, an odd approach to say that somebody who when inquired of for the first, second, and third time in evidence about such a matter, gives answers which, perhaps, increase in confidence. In any event, the Crown did not say he was to be disbelieved in the evidence that he gave, and there was no evidence to the contrary.

That is why Justice Weinberg is surely correct in saying that if his evidence was reasonably possible, that is its truth was reasonably possible, then there is the reasonable doubt raised and left because there is nothing in the advantage the trial had – the jury had, by hearing and seeing the recording of the complainant which could explain away that matter. That is, in our submission, a matter with which there has simply not been any engagement by the Crown.

That is why in paragraph 4 of our reply in responding to our learned friend’s submissions we point out that the difficulty with asserting that the majority has dealt with that argument, though it is plain the majority does not in terms engage with the way Justice Weinberg expresses it – the difficulty is that it is completely against the notion of compounding possibilities the way in which the majority deals with it.

To say one by one of these matters it is possible that it is not so has two major errors. The first is it does not ask in relation to the whole of the evidence what the whole of the evidence says about a reasonable doubt, bearing in mind that all of those circumstances had to align. That is the first thing. That emphasises what might be called a Hillier‑type error.

But the second, of course, is that it inverts the burden by saying that there was a route to proof beyond reasonable doubt upon it being made apparent that the offending was possible and no one I think against us and no one in the majority has ever tried the mental gymnastics of saying that you can compound possibilities to turn them into beyond reasonable doubt. That is absurd.

EDELMAN J: But one does have to disentangle at some point references by the majority to impossibility from the case that was put at trial which at various points was that this was impossible.

MR WALKER: Unquestionably. Your Honours, we have written about that and it is the subject of observations by Justice Weinberg in passages we have cited in our writing. Can I try to summarise it as follows. There was argument on the appeal and we seemed to have come off second in relation to whether or not Mr Richter’s repeated characterisation of the opportunity to offend as impossible somehow made a bed that we had to lie on so that proof of possibility, that is, refusing impossibility, was a road to proof beyond reasonable doubt.

In our submission, that is completely wrong in every step of the way. In particular, it may be, I suppose, raised at once in order to be dismissed. No one says, least of all the Crown here today, that an accused can, by the way the accused runs a case, reverse the onus or reduce the standard. No one says that. That ought to be enough because it means of course the trial could never have been determined and the appeal could not have been conducted on the basis that the conviction should be upheld so long as guilt was possible.

I have already taken you to some but there are other aspects of the directions of the trial judge, entirely orthodox, forceful and, with respect, impeccable in this regard, whereby the jury was left in no doubt that, notwithstanding the way in which Mr Richter had used language, that had not changed the nature of the issue or their task.

So the question is: is there some fatal infelicity in the way in which Mr Richter used the word “impossible”? We would say for the following reasons no, not at all. It is to deny the proper nature of adversarial conduct, particularly by a defence, in an accusatorial trial. Let me explain.

With or without evidence from the accused ‑ but an easy example is where there is evidence by an accused – the assertion by the accused that “I did not do it” comprehensive denial of the offending of course involves the proposition that what the prosecution says is impossible. It was, “I did not do it, I was not there, I did not have the knife”, et cetera, et cetera.

No one has ever supposed that the proper conduct of a defence on instructions – “I did not do it” – means that the mere possibility that that version is wrong is enough to prove the case. Of course when one talks about oath against oath, this Court’s learning, with respect, in Liberato and post Liberato and applying Liberato, and the discussion recently in De Silva, makes it crystal clear that that would be a fundamental departure from one of the safeguard frameworks skeletally of our criminal trial and the appeal from it – namely, throughout the burden and the standard remaining on and testing the prosecution case.

In our submission, the sequence – and you saw the judge in the direction I took you to before the adjournment quoting Mr Richter on one of the occasions – the sequence - impossible, very improbable, et cetera, is entirely proper advocacy because what better way of raising a reasonable doubt about the involvement of a person in an offence than for the defence, for example, to extract by cross‑examination of a prosecution witness evidence that shows it would be impossible for the accused to have been there.

How absurd to say that once you have such strong evidence you can no longer sensibly talk about beyond reasonable doubt because it is the other way around. It is clear to demonstration it could not have happened and that, in our submission, is just a workaday, everyday aspect of a properly conducted defence on instructions which involve direct contradiction of the prosecution case.

How absurd for the majority implicitly – I do not suggest they did this as a matter of reasoning but this is entailed in their approach – to require, as it were, as a kind of constraint on a criminal defence that it…..not to say, “I was not there; it did not happen” but rather to say, “There is a reasonable doubt as to whether I was there; there is a reasonable doubt as to whether it happened”.

That is where the jury is going to be directed, but in order to properly frame the issues and to fulfil one’s instructions in defence it is absurd to suppose that the Archbishop was not entitled to have presented vigorously a defence that said, “This is impossible because I was somewhere else doing something else”, and for those reasons, in our submission, the strictures uttered by all three judges in the Court of Appeal, more mildly, with respect, by Justice Weinberg against Mr Richter’s use of that language are misplaced, all of them.

Your Honours will recall, of course, that in the record of interview which was before the jury – and it is noted at paragraph 150 of the majority’s reasons in the core appeal book at page 225 – there was in this case just such an assertion by the Archbishop. It is impossible.

Now, I have already referred in opening to proposition 2, namely that the way in which the Crown approached the calling of these witnesses, and the seeking of leave and the eventual, virtual non‑recourse to that leave to challenge supports the proposition that we have advanced in paragraph 12 of our written submissions. I do not need, I think, to go beyond simply drawing to your Honours’ attention that both in the majority and in Justice Weinberg, you will find accurate references to what the Crown was not doing in relation to these witnesses. They remained consistent as to what I will call eschewing any assertion that they were insincere or lying.

At the beginning when they obviously still had in mind asking questions, the language they used we have actually quoted in our paragraph 12. It comes from the applicant’s further material page 5 – I do not need to take you to it. There was a need, the prosecution urged, in seeking and obtaining leave, to put that these witnesses are incorrect and for their evidence not to go to the jury unchallenged.

Now, that was a need which, with respect, properly recognised that the adversity upon which they relied successfully to get that leave, the adversity was to their case, adverseness was to their case, and it was the kind of adverseness that classically raises a reasonable doubt. In the event they did not put that the witnesses were incorrect to the witnesses to give them an opportunity to deal with it, or to the jury. They presented to the jury various theories of fit between the evidence, to which your Honours will have read reference, but they did not involve being able to take out an inconvenient part of the mosaic, namely, the evidence of those witnesses.

We rely on and urge the correctness in principle and on the materials to which I have just referred, the way in which Justice Weinberg concluded on this aspect of the matter at core appeal book 448 in his Honour’s paragraph 952. Now, this is just one of the places where his Honour, with great respect, takes the right approach:

Even a mere ‘reasonable possibility’, unrebutted by the prosecution, that what Portelli and Potter said might be both truthful and accurate, would give rise to a complete defence, and would necessitate an acquittal.

His Honour means defence by way of answer. We are not talking about shifting an onus:

Once again, it must be remembered that at trial, the prosecution did not suggest that either man had lied . . . I should proceed on the same basis, though I would have arrived at that conclusion irrespective of the approach taken by the prosecution, at trial.

Then his Honour goes on, as it were, over‑determining this point in over favour, to note other material in the same vein, to which we will come a little later.

We have, in proposition 3 in our outline, cited material by way of example to make good the propositions I have just sought to develop. In the respondent’s further material, volume 2, page 540, picking it up at the foot of page 540 at about line 28 in the transcript:

you’ve given evidence of various memories you have of various masses . . .

And you’ve been quite specific –

Now, this is the re‑examination by the Crown, who has leave to challenge:

as to your memory of what happened and where it happened and when it happened.

So I interpolate again, this is the place that there was to be challenge about why did you give Mr Richter answers which were supposedly more confident? There is an innuendo in that proposition that needs to be exposed and dealt with and it is an innuendo of insincerity, gilding the lily.

There is never, and I do not criticise the Crown for this at all, it has never developed because presumably it was not thought proper on the materials available to the prosecution to do so. So there is then what I will call a supposed test of recollection, oddly conducted by a mixture of leading and non‑leading questions, none of which, in our submission, comes anywhere near a requisite challenge.

The same thing can be said for the pages a little over in the book, 543 to 544, picking it up at the top of page 628 and going down towards the bottom of 629 of the transcript. One has, at lines 20 to 22 on that transcript, page 629:

did you accompany him . . . to all his masses after September
1996?‑‑‑Yes.

Every one of them?‑‑‑Yes, I did.

No one is seriously suggesting that is a challenge, suggesting that the jury should have been sceptical about that proposition.

BELL J: In the light of the leave given pre‑trial, that is, pre the first trial and applying to this trial, questions directly taking up Monsignor Portelli’s capacity to recall with specificity the first and second masses that the applicant conducted should have been in‑chief.

MR WALKER: Yes, yes. I drew to attention it is re‑examination simply because that, as we understand it, and the majority’s observations seem to support this, something is said to be raised by what happened after the examination‑in‑chief, that is, in the answers to Mr Richter in what I will call cross‑examination. That is the only reason why in re‑examination it may have become, that is, fresh matter to which the leave might apply. Of course, what your Honour says is correct.

BELL J: The difficulty I am having is the purpose of the pre‑trial application was the understanding that evidence of the kind given in cross‑examination would be led.

MR WALKER: Would be, exactly. In fact, it is not, the evidence - if I could just say chief cross‑examination and re‑examination and leave aside the niceties of who is asking leading questions or has leave to do so. In fact, the evidence‑in‑chief is not inconsistent with the evidence in cross‑examination and certainly does not contradict the thesis that Monsignor Portelli was with the Archbishop at times, and therefore at places, that is, performing certain functions, utterly at odds with the Archbishop unaccompanied, but robed, being elsewhere committing the offences.

That is what, when applying for leave to cross‑examine, was correctly understood as being evidence adverse to the Crown by a witness who was going to be called because the duty of the Crown to call extended to such witnesses, adverse as they may be, so long as they did not have the disabling feature, dispensing a Crown from such a duty, with respect to what I am going to call problems of credibility, not to say out‑and‑out lies. So these were never witnesses that fell outside the prosecutorial duty to call because of a concern of that kind. They were witnesses correctly understood by the Crown to be against their case. Thus, the leave.

GORDON J: The position in relation to each of these, though, it is not so much the challenge to the fact because they do not - as I understand your submission, that they are lying but that their evidence is to be put to one side because it is vague or it is lacking in detail or it is lacking whatever is necessary to get them over the line.

MR WALKER: Not really, your Honour.

GORDON J: That is why I say to you that second proposition in Justice Weinberg’s 1065 is really - in a sense it raises the very question, what is the evidence and what creates the possibilities necessary to give rise to this doubt?

MR WALKER: Could I make this crystal clear. There was no attempt, on the part of the Crown, to discredit that evidence, apparently without impugning honesty but impugning reliability or accuracy or whatever - there was no attempt to impugn it to such an extent that there was no reasonable possibility it was correct.

But your Honour’s suggestion to me is, if I may say so, excessively generous as to the way in which the Crown advanced this, both at trial and on the appeal. They did not say that Monsignor Portelli could not have been with the Archbishop. They did not eliminate it as a possibility at all; hence the force of the argument that we have put about the wrong question being asked – is it enough if the jury had before it evidence and argument which supported the possibility that Monsignor Portelli was wrong?

GORDON J: I put it the other way: what is the evidence giving rise to the possibility that he was on the front steps?

MR WALKER: His evidence – and it was not unsupported of course; there were other witnesses. We have catalogued all of that, and it is not contested. It is not said that there was not a practice. It is not said that Monsignor Portelli was fantasising, obviously by dishonesty, or by disability. None of that is put. He gives the evidence. If anything, the criticism against him is that he gives it too confidently, which we submit is ungracious, with respect to him. He is being asked further questions about the same matter.

My point is that the jury had before them witnesses called by the Crown, the Crown not putting that they were not to be believed and the Crown not saying that they were giving evidence of something that could not have happened – that could not have happened.

In other words, the Crown went to the jury and is still here today, as we understand it, on the basis that the evidence that Monsignor Portelli and others – but just taking him for the moment – gave was evidence which shows, at least – this is the Crown speaking, not me – the possibility that he was with the Archbishop, meeting and greeting, at the opposite end of the cathedral from where he had to be in order to be offending at the time of the alleged offending, being of course that which, to put it mildly, gives rise to a reasonable doubt as to guilt.

It is not possible for the Crown to say that they invited Monsignor Portelli’s evidence to be put to one side on some disqualifying feature of it. They did not do that. With respect, a fault of the Crown’s approach at trial was that they did not deal comprehensively with the matters that had been raised in light of the evidence of witnesses like Monsignor Portelli, but there are others as well.

GORDON J: Well, they had raised what they described as six issues when they opened the case to the jury - in their opening. Your argument is, as I understand it, that some of those six issues came back in the sense – were still live at the end.

MR WALKER: Yes.

GORDON J: It went from a case of now consist ‑ that is, that the evidence of the complainant could consistently sit with that evidence.

MR WALKER: That is what I referred to earlier, this idea of fitting. Now, we attempted at trial and in the Court of Appeal, and have repeated here, to spell out why exactly that was always overambitious. It simply does not fit. You have to ignore aspects of the evidence and that is not the approach that a jury acting reasonably would take and therefore it is not an approach that the Court of Appeal could take in answering the question is this material on the basis of which the jury must have felt a doubt in order to answer the question was it open, bearing in mind the need for proof beyond reasonable doubt, for the jury to achieve a verdict of guilty?

There still is not an explanation of how, without ignoring evidence like Monsignor Portelli’s, there can be the presence at the time and place necessary for the first episode to have taken place. I have repeatedly said Monsignor Portelli did not stand alone. I do not mean he was next to Archbishop Pell; I mean as a witness. There were others as well and we have drawn to attention by way of example the way in which the evidence of Mr McGlone falls out.

Could I take your Honours to the respondent’s further materials at page 664 of the book, transcript 962. I will not read it. It starts at about line 9/10 on that page and you see that there is cross‑examination in‑chief pursuant to leave with respect to the completeness of recollection. Then on page 665, as sometimes happens when we cross‑examine, the evidence gets better rather than worse for the witness in question.

So there is an opening of a topic about the relevant mass. Can I just interpolate, your Honours will recall of course the context is that Mr McGlone had a particular reason for remembering the occasion upon which he had had the encounter with the Archbishop on the front steps at a time inconsistent with offending on that day, and that is because of a not unfamiliar embarrassment his mother caused him in saying things about him to the Archbishop.

Those homely indicia of credibility were never in issue because Mr McGlone’s credibility was never attacked. This was all about reliability. Our point is that, insofar as it was challenge to reliability, apart from trying to allocate to one or other of 15 or 22 December, the date of what I will call the McGlone occasion, or postdating it to somewhere else, there was no challenge by the Crown.

So it was not really open to the jury to put to one side what Mr McGlone had said concerning the Archbishop’s presence on the west steps on at least one of the occasions that had to be considered by the jury. Again, I will not read it, but it continues over the page to about line 10 in the book on page 666 and there are, as the witness is invited to reconsider, in the ordinary way further and better particulars given. You will see, for example, the answer at 666, lines 8 to 9. It is what happens when you ask questions. You might just get answers that make it crystal clear that you are on the wrong track.

It never was open to, and to be fair to the prosecution, they never really did argue that Mr McGlone was somebody who could be put to one side. We have been so bold as to cite this Court’s reminder of the adversarial nature of the accusatorial trial in Baden‑Clay 258 CLR 308 at 324, paragraph 48 - I do not have to take your Honours to it.

Obviously enough that was a particularly piquant application of the basal feature of our system whereby within limits and subject to important qualifications, parties are bound by the conduct of their representatives in court proceedings. That was piquant obviously because it sounded against the inconsistent approach advanced for the first time in the Queensland Court of Appeal by the accused but, in our submission, it is plainly also true when a prosecution is advancing argument in an unreasonable ground appeal it really does not lie in the mouth of the prosecution – we do not suggest they have done this – it does not lie in the mouth of the prosecution to say that the jury was entitled to disbelieve as a pack of lies evidence from a witness the Crown called, careful not to challenge on the basis of dishonesty, for example.

That is a particular aspect of the generalised proposition that juries must proceed according to the evidence, their view of the evidence, eschewing matters like guesses and speculation and without knowing what a witness’ response to suggestions that have not been raised with a witness, there will necessarily be an element of guess or speculation as to unraised possibility of it having being a pack of lies.

Now, your Honours, in proposition 4 we have provided citations in relation to the practice of greeting on the front steps. This is an area of the case where one can see in the conduct as it differed through the course of the trial matters being raised by the prosecution, some of which were persisted in the Court of the Appeal, and some of which are persisted in here, but not all of which are, which might provide an explanation – though we do not have to provide an explanation – as to how the jury went wrong.

As we have noted in paragraph 15 of our written submissions, eventually the existence of the practice was accepted. Your Honours, will recall what I said – the prosecution went to the jury saying it can all fit. If the practice existed and was followed on the day in question then the offending could not have taken place. That was common ground.

EDELMAN J: How does that fit with the summing‑up by the trial judge at application book 24, lines 18 and following?

MR WALKER: If your Honour just forgive me, I think the reference we have given in our proposition 4(a)?

The Crown accepts . . . that for the first incident to have occurred then Archbishop Pell must have been off the front steps ‑

I am sorry, I think that is what I was putting, your Honour.

EDELMAN J: I understood you - maybe I misunderstood you - to have suggested that it was accepted by the Crown that if the Archbishop was on the front steps for any period of time, therefore, it would be impossible or reasonable doubt must have arisen as to whether the subject charges of the first incident could have occurred.

MR WALKER: That is right. In our paragraph 15, in which we deal with this matter, your Honours will see our reference in footnote 3. The prosecution accepted if the applicant was on the steps for even 10 minutes - I do not know what portion of the time your Honour Justice Edelman was asking me about - neither the first nor second incident could have occurred. That is what I mean when I say the Crown accepted that if the practice was followed for even 10 minutes, and the evidence was that it was usually longer, then there would have been, adopting your Honour’s language in your question to me, an un‑eliminated reasonable doubt, that is, it would not have been open to find proof beyond reasonable doubt on that account.

EDELMAN J: But not necessarily for, and in the words of the trial judge, a few minutes.

MR WALKER: No, quite. No, no. No one has, I think, has pointed ever to an evidence of a few minutes. That is because you have the five to six minute for offending, you have the, at least 10, usually I think double, for the front steps. We do not have any evidence timing the front steps on the occasions in question to less than that. In short, it could only be by an inadmissible speculation, which at best would give rise to an un‑eliminated possibility. That is again why it is false reasoning to say, notwithstanding nobody talked about it, it is possible that it was less than 10 minutes, and in fact it was possible that it was less than the critical time necessary ‑ ‑ ‑

NETTLE J: Portelli said it might be six to seven. There were occasions when that was so.

MR WALKER: But he is talking about the whole time of his tenure. He is not talking about these two occasions that he recalls because of the novelty and importance of the Archbishop, the new Archbishop, at mass for the first time, greeting people. Again, I stress that that is material on the basis of which you cannot eliminate the possibility that the Archbishop was on the front steps too long to have offended. In our submission, forensically there is the full stop because that is another sufficient point that says it was not open to find guilt beyond reasonable doubt.

EDELMAN J: There is some evidence about the time that it takes to walk from the sanctuary to the priests’ sacristy but was there any evidence about the time it might take to walk from the front steps to the sanctuary or to the sacristy?

MR WALKER: No. It would only be by, I think, a somewhat insecure inference.

NETTLE J: Based on Mallinson and Cox?

MR WALKER: No, I think Justice Edelman ‑ ‑ ‑

NETTLE J: It took two minutes to get down there going down. Presumably it took about the same to get back, plus a bit because it is further.

MR WALKER: Their route – as an organist, a choir master – they are not exactly to be acquainted with the sanctuary, but yes, subject to those qualifications.

GORDON J: They were playing postludes. I think that was the basis upon which they provided that evidence.

MR WALKER: Yes.

BELL J: May I inquire, while there is some discussion about evidence, about this? The parties have put portions of the transcript of evidence before the Court.

MR WALKER: In the books, yes.

BELL J: It is far from the whole of the evidence and this Court is not being invited to view the recordings of the evidence.

MR WALKER: No.

BELL J: Am I right in understanding you contend, were leave to be granted, that it would be open to this Court to consider that on the findings recorded in the joint reasons their Honour’s acceptance of and summary of the evidence of Monsignor Portelli, Mr Potter and other witnesses that you have identified in your submissions meant on your analysis the acceptance that their Honours found a reasonable doubt?

MR WALKER: Without recognising it as such.

BELL J: Yes.

MR WALKER: Yes.

BELL J: What I am asking you really, Mr Walker, is why are we being taken to selected portions of the transcript if that is the burden of your submission and if it is not how can we deal with the matter without the whole transcript?

MR WALKER: I am much obliged to your Honour. I think part of the explanation of the question starting with the word “why” is by way of anticipation in relation to experience in the court below and what we have seen by way of exchange, but may I consider that over the luncheon adjournment in terms of method of approach. It is, with a few exceptions that have been made, I think, very explicit in the exchanged written submissions. With a few exceptions this is not a case that turns on rival characterisation of what is to be got from transcript.

But let me, while on that matter here, complete what I was saying in relation to the practice of standing on the steps. If it was 10 to 20 minutes, and no one can say that is not possible, then the offending was not. That, I suppose, is the briefest way of putting the importance of this question.

So the prosecution, as we have noted in our paragraph 15, accepting that practice and what is entailed in it, namely with an appropriate interval it would render offending not possible, proposed a way of making it fit for the 1996 episode, the first episode, vary what that would do to the second episode, 23 February it turned out, to be selected by the Crown, 1997.

They said the practice did not start until sometime in 1997. There is simply no evidence that permitted that to be put against, as it were, the plain evidence to the contrary of, among other people, Monsignor Portelli, the person most closely involved in these aspects of practice.

As we have noted in paragraph 15, that attempt to make it fit, first of all, said nothing about the possibility that on those two important occasions in the second half of December 1996 it would have been more than two, three or four minutes. It may have been a possibility that it would have been the 10 to 20, the probability of being towards the longer end, never eliminated, that is enough to make any attempt – one that needs to remove this practice from the scene. That was done by saying, “It did not commence”, which the commencement of the practice is I suppose the first time the thing that is later said to be with repetition a practice occurred.

Again, there was no evidence whatever – and more to the point, none of the evidence which was to the effect of the Archbishop on the steps on the two candidate dates in question in 1996, none of those witnesses ever had raised the proposition that the practice of standing at the steps did not start until the next calendar year – sometime or other, query with what effect upon the second episode date selected by the prosecution, namely 23 February 1997.

We do not need, particularly in light of what Justice Bell has raised with me, to go to those references that we have given in paragraph 15. It simply is clear, and we do not understand it to be disputed, that the theory about a commencement in 1997 at best depends upon a misunderstanding to which I will come back later, of evidence about the beginning of the Archbishop’s tenure in the cathedral premises and the introduction by him and by way of adapting to the practices. I will come to that later.

In our submission, that is a good example of how in terms of what was open to the jury it was not possible even given, or especially given the lack of foundation for the prosecution’s dealing with the practice of standing at the steps, to have regarded reasonable doubt as being eliminated. When a prosecution, recognising a difficulty, an impossibility for its case from material which it has led, seeks to sideline that material by an approach that lacks any evidentiary foundation then, in our submission, there is an extremely clear demonstration of a case where it is not open for a jury acting reasonably to find guilt beyond reasonable doubt.

Similarly, we move then to the other of the witnesses in question. It was not just Monsignor Portelli, nor was it just practice. As we note in paragraph 16 of our written submissions with citations both to what I will call conclusions as to the evidence expressed in the Court of Appeal as well as some of the evidence itself, it is clear that what the jury had before them was evidence, not challenged as to its truth, concerning the Archbishop on the front steps taken in combination on both of the Sundays in question in 1996.

In relation to the duration of the standing on the steps ‑ a matter critical if one is trying to make things fit ‑ there was evidence to which we have drawn attention in paragraph 16 from Monsignor Portelli about the nature of the occasion, the number of people wanting to greet the new archbishop, a matter noted by the Court of Appeal majority in their paragraphs 248 to 249. I do not need to take you to it.

There is also reference in their paragraphs 687 to 688 to the nature of what this evidence produces by way of what we urge should have been recognised by their Honours as the plain un‑eliminated possibility of circumstances that could not permit, rendered not open a finding of guilt by committing an offence somewhere else at the same time.

We draw to attention, and I do not need to recite the limit, the peculiar, we would put it, nature of the so‑called challenge – if it could be called a challenge of Portelli, Monsignor Portelli, concerning his evidence of recollection, not just of practice but also of these earlier occasions. Your Honours will see that set out in our paragraph 16 of our written submission, picking it up at about line 22 on that page, again I will not read it but, in our submission, we have shown that none of the matters raised by the Crown could possibly be said to go to the cogency, if only as to a matter of possibility un‑excluded of that evidence of Monsignor Portelli.

It could not possibly be, for example, a serious form of challenge leaving it open to the jury to disregard Monsignor Portelli’s evidence, that we have noted about line 29 in paragraph 16 of our written submission, when the Crown asked him whether it was possible on “an occasion or occasions”, and this is over all the years in question, not just the two, the applicant only remained on the front steps for a couple of minutes.

Now, that is a Crown not engaging with the evidence of the witness concerning those particular occasions, which were the only ones relevant to the question. The answer is one that plainly does not sweep away or provide a fit for this evidence. He supposed it was possible, did not recall it ever happening, and the majority of the Court of Appeal, the convenient reference there is their paragraph 246.

Now, bearing in mind that if the practice was being followed as the evidence, unchallenged, said it was on those days, that in order to remove the possibility that it was longer than usual, so at least 10 or 20 minutes, and in order to fit that with the prosecution case where 10 to 20 minutes would not fit the prosecution case, there had to be material on the basis of which, using that evidence, or at least taking that evidence into account, the stay on the front steps was so much abbreviated on those occasions.

The closest, if I can use that expression, the Crown came - query whether it could be seen seriously as an attempt to do so - is to ask this question whether on an occasion or occasions he may have been there for only a couple of minutes. The very framing of that question bespeaks the fallacy in question. If the Crown shows something necessary to make proven circumstance fit with the offending, extracts an answer that it is possible, that justifies the elimination of reasonable doubt. That, with respect, is completely topsy‑turvy.

GORDON J: What are we to make of Portelli’s subsequent evidence in relation to the linking of the few minutes with the actual events of – or occasions of the 15th and the 22nd where he says, I think, words to the effect that it would have been unlikely that it would have been just a few minutes on those days, given the significance of them?

MR WALKER: Yes. I have drawn that to attention - we have drawn that to attention in our paragraph 16 at about line 18 or so. We most definitely rely upon that. I stress, we are not here to prove – we were not at trial here to prove anything, nor in the Court of Appeal, nor on an appeal were special leave granted here, except to show, to demonstrate that there were un‑excluded possibilities that meant it was not open to the jury to convict. I have to show that. I am not proving facts, and I am certainly not proving innocence. That is that which we protest about and which, in our submission, renders this an important case for a grant of special leave.

In fact, when one looks – if your Honours forgive me; I am sorry, your Honours, there are too many books – could I draw to attention – I suppose this is one of the areas where it is said without joining up the dots that Monsignor Portelli was more confident or forthcoming in cross‑examination - what you will find at page 510 of the respondent’s further materials, starting at about transcript line 22 and going over to the top of page 512, about line 6. I think, in particular, the end of that is what your Honour Justice Gordon had in mind.

GORDON J: It is. Page 511, line 26 through to 512, line 7.

MR WALKER: Quite. In our submission there still has not been engagement by the prosecution in orthodox terms of who has the onus, what is the standard and what is being endeavoured to be shown in an unreasonable ground of appeal with the consequences of that material? Your Honours will note the tart observation with which we conclude our paragraph 16 in our written submissions in light of yet another occurrence of the prosecution before the jury not referring to evidence which did not fit.

We then turn in our paragraph 17 to Mr McGlone. I have already made some reference to that. Your Honours will see our quotation - this is not excessively neat, but it is an attempt to be brief – from the prosecution closing, about line 15 in our paragraph 17. To the jury, it was accepted by the Crown that Mr McGlone’s evidence would effectively provide an alibi for the first mass said by the Archbishop in December 1996; that is, if Mr McGlone were to be accepted as to it being in 1996 at all.

That is then their attempt again to make things fit by putting them into another time period, a matter which, as we note and surely ought to be dealt with peremptorily, is a matter never put to Mr McGlone. Justice Weinberg at his paragraph 707 and footnote 196 in the core appeal book, page 383, sufficiently demonstrates the inappropriateness of any argument suggesting a fit could be made by postdating Mr McGlone, his mother and the Archbishop on the steps, particularly so when your Honour has seen the material concerning Mr McGlone ceasing to be involved.

We have, again, drawn to attention the awkwardness for this multifactorial attempt to make evidence fit with the prosecution theory in the close of our paragraph 17 – I do not need to take your Honours to that material. It is again a demonstration of what could not be reasonably open to the jury, bearing in mind the inadequacy, or gaps, or failures of the prosecution during the course of the trial to deal with evidence they had called, which was avowedly inconsistent with the case of offending.

We have turned to Mr Potter who was a special case, someone to whose evidence the significant forensic disadvantage direction is plainly very important and your Honours see, with respect, the appropriate way in which the parties with the assistance of the trial judge had dealt with aspects of that. We have set out, with references, those matters in paragraph 18. So I want to make it clear ‑ it has to be understood ‑ that there was for good reason, decent reason, an accommodation reached with respect to confrontation or challenge of Mr Potter.

But what we want to note and draw to attention, particularly as we note in our paragraph 18, is that this is of no assistance to a vindication of the majority’s approach in the Court of Appeal, bearing in mind that the Crown had no hesitation in calling in aid this evidence. They did not treat it as something about which, as it were, one would raise a forensic eyebrow, and more in sorrow than in anger move on with least said soon as mended, not at all. We have drawn to attention what the majority notes about the way in which the Crown presented him to the jury. I do not need to take you to it - the majority is at paragraph 267 in the book at page 271.

Now, it was Mr Potter that gave this evidence of an adjustment period, introducing the Archbishop to the liturgy and the assembled ritual and activities, in order to float this notion of a practice they were accepting was inconsistent with guilt, inconsistent with the elimination of reasonable doubt, I should say, as having not started until sometime in 1997. Your Honours, I note the time is – rather than embark on that now.

KIEFEL CJ: Yes. Thank you, Mr Walker. The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, two matters arising. Before the break and apropos the argument I put based upon the approach Justice Weinberg demonstrated in his paragraph 1065, Justice Gordon asked me what was the evidence going to the possibility of Monsignor Portelli being correct in the various respects I have raised.

It occurs to us that a comprehensive, if compact, answer to that can be found in our written submissions, footnote 13, on their page 16. It is dense, I will not read it, but it extends to dealing with the, we submit, unjustifiable observations by the majority concerning Monsignor Portelli’s evidence, based upon what he had said, unchallenged, concerning the robes – that is, their incapacity to be parted in the requisite fashion. I will not dwell on it but, as I say, that is our answer, apart from what I have already given, to Justice Gordon’s question.

It occurred to us, as well, to make this qualification or add this important proposition to what we have said concerning the fallacy of the majority proceeding to regard certain circumstances as possibly occurring. We point, as your Honours know, to the corollary of that means possibly not occurring. And given our criticism of the majority for what we have called a piecemeal approach, that is taking each objection by us saying the thing you say is not possible, was possible, and putting it, as it were, to one side.

Given that criticism we make we wish to make it clear we do not invite by referring to, for example, Monsignor Portelli’s evidence. We do not urge a similarly flawed atomised approach That would be wrong. One of our main points on the proposed appeal is exactly that it is taking all of the evidence of which, of course, it happened that Monsignor Portelli’s was that which I was addressing at the time. It would, of course, be wrong to view the matter witness by witness, but when taken as a whole there are those witnesses in the ensemble of the evidence and, in our submission, it is appropriate to ask: did this give rise to a doubt that the jury must have felt, so as to mean it was not open for them to find guilt beyond reasonable doubt and that is the approach that we urge on the Court.

EDELMAN J: How does that approach fit with your primary submission in relation to the video, that the Court of Appeal should not have watched the video given that the video of the complainant’s evidence was at least tendered, as I understood it, but was certainly part of all of the evidence at the trial?

MR WALKER: It fits because of the warnings sounded in SKA against the imbalance represented by audio and visual as opposed to written reception by the appellate bench. It gives rise, as we have put in our written submission on the point, to a real danger that the appellate court would enter into an out and out credibility assessment for itself whereas the real question is, having believed, that is, according credibility to the complainant, was the jury in a position where it was open to find guilt beyond reasonable doubt or, to put it another way, is the material pointed to by the appellant such that they must have felt a doubt on that account, which gives rise to the arguments that I have sufficiently put already concerning the need to avoid a circularity.

It is for those reasons that, when Justice Edelman asked me how does it fit, there is no discordance between us taking the primary position do not look at audiovisual material because that really is for the purposes of credibility, it is not suggested the transcript is defective. One of the obvious exceptions to the proper primary position that, as we would urge it, is precisely when there might be a doubt about what transcript records, which might be cleared up by ascertaining what an audiovisual recording demonstrates.

EDELMAN J: What about a situation where, contrary to your submissions in this case, a defence case is borderline or weak and there may be a real forensic reason to assess the strength of the credibility? Do you maintain that even in this case, credibility assessments independently by an intermediate appellate court are impermissible?

MR WALKER: Now, your Honour is here putting to me a recording of either an accused or a defence witness, I think, so that the question arises as to whether the proper conduct to safeguard the preservation of burden and standard would also deny ‑ ‑ ‑

EDELMAN J: No, I am talking about a recording of a complainant.

MR WALKER: Of a complainant?

EDELMAN J: Yes.

MR WALKER: That would be, in effect, an invitation for the appellate bench simply to act as if it were the jury and nothing more. There would be no difference, except, if I may say so, for two really radical points of difference: no unanimity or a need to try to achieve unanimity before a statutory majority, if that is available, and reasons.

In our submission, the beguiling simplicity of saying the recurrent recorded evidence is an exhibit and therefore, like all exhibits, available to be seen does call for careful consideration by this Court as to whether that can simply be applied not only to CCTV audiovisual but also to recorded testimony, such as the statute contemplates in this setting. It really is the fact that the credibility of the complainant has been found, or has been favourably viewed by the jury, which is the premise of the appeal, which really means that is not where the appellate bench goes back.

EDELMAN J: So where your submission gets to is, although there is recorded evidence which is an exhibit and although the strength of the credibility of the evidence in that exhibit may be relevant or highly pertinent to the jury, unless there is some other independent forensic reason, the intermediate appellate court should not look at that.

MR WALKER: Right, lest there simply be a user patient of the jury’s role. The standard directions to juries positively invite them to consider for themselves the credibility of witnesses and the system includes not only what appeal courts do but also what trial judges direct and they must all be coherent.

In our submission, it would not be coherent nor would it serve this Court’s repeated caution that the appeal statute is not to lead to a supplanting of the jury. It would be not coherent if at trial the jury says, “Credibility is for you,” and on appeal all an appellant – or assuming on leave an appellant has to say, “I want another go at that; I want to now put the credibility question before another tribunal”.

In our submission, there is no authority to the effect that that is how the standard appeal provisions operate, and there is certainly no authority and principle would urge against the appeal court simply assuming a quasi‑jury credibility adjudication.

BELL J: Were the Court to adopt that approach, it would be necessary in dealing with a ground of appeal that contended that the verdict was unreasonable and unsupported by the evidence to give itself the sort of directions a judge might give concerning the assessment of credibility to explain that it had taken into account those matters in the course of giving its statement of reasons for the resolution of the ground.

MR WALKER: Of course there is the small matter of being able to draw a ground of appeal which alleges something in the nature of error here, rather than the statutory notion of unreasonableness. And that raises very serious fundamental questions about is it unreasonable for a jury, simply on the credibility question, to find credible that which other people may not find credible. That is why we are running – we do not think, with respect, these matters require a decision on this case, nor that this case provides a vehicle for determining all of those matters, although they are no doubt questions that ought to be explicitly noted. That is because we simply say that accepting the jury had a favourable view of the credibility of the complainant – that which is manifest, and will be manifested in really every case one can imagine – nonetheless was the state of the evidence such that they must have felt a doubt so that it was not open to them to find guilt beyond reasonable doubt. I do not think I can add anything further then to how I have tried to answer Justice Edelman.

Could I pick up briefly so as to conclude the manoeuvre, if I can call it that, by the prosecution when having accepted that the standing on the steps – except for I think a purely theoretical, non‑evidence‑based notion of a very short stay on the steps – but in the ordinary or expected or in this case recollected course of events for the first two masses, that would provide an ample reasonable doubt preventing a verdict of guilty being open; you will recall the prosecution tried to post‑date the commencement of that conduct in 1997. They based it upon the so‑called adjustment period of which Mr Potter had given evidence. This is the adjustment that the ancillary staff at the cathedral were providing, if I may put it this way, of the Archbishop himself. That is, adjusting him to the systems and practices of the ritual liturgy and accompanying activities.

As we point out in our paragraph 18 of our written submissions, in fact, his evidence of the adjustment period was, as we would put it, convincingly referred to as one of the reasons why he could remember the applicant being on the front steps in 1996, because Mr Potter stayed with him as part of the adjustment period on those days, so that the Archbishop could be sure he knew where the Archbishop was to walk.

The notion that that was not happening in 1996, although we know there were masses in 1996, the notion that the adjustment being that which is at the beginning of the course of conduct, in fact did not occur until later, in our submission, is completely contrary to the way in which the evidence was permitted to be laid out for the jury and that is because there was no theory of a 1997 adjustment period or an adjustment period which left out the standing on the steps in 1996 put to Mr Potter at all. There was no challenge of any kind to his evidence that there was the Archbishop on the steps, greeting people, for more than 10 minutes on the first two occasions he said mass.

Could I briefly, moving to and through proposition 5 in our outline, as your Honours know, the evidence was all one way concerning what was a very important aspect of protocol, the Archbishop would never be left alone while robed. Now, like all matters of practice, custom, protocol, habit, it is obviously subject to human error or departure, but the existence of an observed habit, the existence of an extant practice, that which is usual, ordinary or normal, provides, of course, a very solid foundation for a reasonable doubt engendered by the impossibility of the practice being followed and the offending having occurred, which is this case.

Placing a premium on the way in which a prosecution in such a case sets about dealing with the practice, logically but not on the facts in this case, the first obvious recourse is to dispute the existence of a practice. That did not happen. The next obvious proposition is to say, like all human conduct, imperfection could mean that it did not occur on the occasion. That would require some evidence, rather than simply inviting speculation or a guess. But, in any event, if the Crown case never rose higher than it is possible, like all habits, it was departed from, then, for obvious reasons ‑ and I will not repeat the circularity argument ‑ for obvious reasons there can be nothing in the nature of a reversal of onus by which the possibility of an offending miraculously proves it beyond reasonable doubt.

And so, in our submission, here is a powerful, independent, unrebutted, that is, unremoved, element of the evidentiary case against the notion of the Archbishop robed and alone in the sacristy and there is, with respect, no proper response to that in the majority’s reasoning, or in the argument against us here.

There was, in any event, not just evidence of practice and I will not dwell on it because of the time and the detail with which we have covered this in writing, but as your Honours know, there was evidence, combined as well as individually, from Monsignor Portelli and Mr Potter, to which we have given chapter and verse references in paragraphs 20 and 21, 35 to 37 of our written submissions. The remarkable characteristic of that evidence not being challenged means, in our submission, that it adds yet again not merely that which would be powerful in itself – habit, practice, ritual – but also the actual recollection on the occasions in question.

I next come to proposition 6, which, as your Honours see from the subpropositions (a) through to (g), is an important one. May I try and put it in context and perhaps shorten its presentation as follows. It was common ground that in order for the offending, in accordance with the Crown case ‑ which included and, as to the occurrence of offending itself, comprised only the complainant’s evidence ‑ that there was a sufficient period of time – it is gauged at five to six minutes in the way in which the trial and appeal fell out – for the boys to have been in the sacristy, initially on their own, finding the communion wine and then being surprised by the Archbishop, who then allegedly dealt with them in the fashion you have read about. That is the five to six minutes.

It requires, in the nature of things, them to be alone, the three of them to be alone. The complainant’s evidence asserts they were alone but a moment’s thought would suggest that that could scarcely be an aspect of his evidence that might be, as it were, without harm to the Crown case as a whole being discarded by a jury, who is of course entitled to pick and choose among a witness’ evidence.

The fact that they were alone in the room is surely essential to the making out of the offending, not least because of the nature of the conduct and indeed the very presence in that room of two choir boys without the duties of a server. That much we think is clear, uncontroversial common ground.

Also, what ought to have been common ground but is not now we think is that that five to six minutes, all of which had to be available, the Archbishop, the two boys, just the three of them in the room, had to occur, we know, either as or some time after the procession, which included the two boys and the Archbishop, started from the sanctuary inside the cathedral, down the nave towards the west door. In other words, it could not have started beforehand – that is obvious.

Your Honours appreciate that that five to six minutes has to have a start point which prevents the procession and the servers from arriving in the sacristy because that would be to have more than three people in the room. It also, of course, has to have the Archbishop in the room. So I refer back to, as one of the compounding difficulties for the Crown case, but will not repeat, the importance obviously, independently, of the Archbishop in fact being at the west door.

Now, the five to six minutes cannot commence on the complainant’s version until, at the very earliest, sometime after the boys have left the procession. That must be so. The procession goes internally, down the nave, to the west door, around the corner of the cathedral, down the outside and then there is, supposedly, the departure of the two boys while the procession continues towards the entrance to the choir room and the sacristy.

The boys peel off, supposedly unobserved, and at that point take some time – it is not possible to do a stopwatch on it – to get from where they peel off the procession to the sacristy. And they are there for some time, some short interval, presumably, before supposedly the Archbishop bursts in on them during this five to six minutes for the offending.

So it is crystal clear and could not possibly be disputed, surely, here that the five to six minutes comes after enough time has elapsed for the procession to have gone the complete distance, sanctuary to west door, around the corner of the cathedral and about, shall we say, halfway down the outside at which point a further interval of time has to be added to allow for the boys to get to the sacristy and conduct their activities, swigging the wine et cetera, before the Archbishop comes in.

Now, that will be enough, surely, to show that on the Crown case the offending five to six minutes was certainly quite some time – it is almost impossible to suggest with a straight face anything like a stopwatch – more than split seconds after the procession leaves the sanctuary. The boys are in that procession.

Now, to jump to the end of it, what we shall try to show is wrong, simply an error in the majority reasoning, which does not necessarily adopt the whole of the way the Crown put it, on this point. To produce what they regarded as the adequate possibility of the five to six minutes of offending fitting into an available so‑called gap, what the majority have done is to equate, here borrowing from what the prosecutor did at trial, that which was coincidentally also the estimated five to six minutes for something called a private prayer time.

It is only a coincidence that they were estimated the same thing, because they are manifestly not the same period and the majority fails to notice that fallacy. Again ‑ and the chapter and verse is contained in the citations both in our written submissions, paragraph 24, and in our outline – I shall try to shorten things by not going to all of them ‑ that requires this piece of forensic background.

In order to find a gap, that is the characteristics of a period in the passage of time to qualify as the necessary gap, I stress the room has to be empty of others and yet the clear evidence was that the servers, who as we have put it, bookend the procession, go into the sacristy in question at the end of the procession and bow to the cross before setting about doing other things to which I will come ‑ that is, of course, the hive of activity ‑ but they go into the room.

The prosecution ‑ and this is not to their credit ‑ cast about for ways in which to argue at trial that you could locate this gap of an unattended room sometime after the servers, at the end of the procession, had come in to bow to the cross. That required the servers being somewhere else, maybe doing something else, but certainly being somewhere else and that was put to the jury in closing. I will not take you to it, because the record shows beyond any dispute what happened, there was objection, and the prosecution withdrew, as bereft of evidentiary foundation, that argument that the servers had gone somewhere else, leaving that as an available gap.

Now, that produced, in due course, as we have cited in our written submissions and in our outline, the final version of what the prosecution went to the jury on in address and it was to point to the five to six minutes of the private prayer time, and the five to six minutes of the offending – my words, not theirs – and voila, coincidence, there is your gap.

It was always wrong, but the majority seems to have, we think, with great respect to them ‑ the passage that I am about to take you to is not clear to demonstration every step of the reasoning ‑ the majority seems to have adopted that equivalence and correspondence between the five to six minutes private prayer time and five to six minutes offending. In a nutshell, why is that impossible and, indeed, impossible on facts noted and found, so to speak, by the majority, correctly?

The five to six minutes private prayer time commenced at the end of the service as the procession left the sanctuary. The procession leaves the sanctuary. Ritual vessels and the like are in place and, as it were, the table is not cleared while there are still people doing things of a kind appropriate to the occasion. This is high religious ritual. There are congregants engaged in prayer. So as a matter of decorum there is not the bated commenced and continued busy to and fro of numerous attendants shuffling between sanctuary and sacristy and elsewhere in order to clear away.

That is the interval of decorum, the time for private prayer, and of its very nature obviously it starts at the time when the sanctuary is no longer occupied by those celebrating and assisting in celebrating mass. That is when the procession starts. There is no doubt about any of that. The majority actually finds that, and we do not understand that is contested. It would be absurd to suppose that there is an interval of decorum starting sometime after the sanctuary was available to be cleared, that sometime after meaning that in fact of course the interval of decorum was much more than five to six minutes. It is sheer coincidence of an unmeritorious kind by which the prosecution allowed the jury, so far as we can gauge, the intended effect of that submission to equate those two intervals. Alas, so did the majority.

If we are right about that wrong approach of the prosecution factually and if we are right about the majority in the Court of Appeal failing to pick up that error, then it is as simple as saying that the Crown case simply could not eliminate the number of grounds for reasonable doubt as to the offending taking place as alleged because there was simply not the available time for it to occur before what the evidence called the hive of activity commenced and continued.

For completeness, I need to say we do not apprehend that anywhere – trial, appeal or here – it is said on behalf of the Crown there was another way of making all this material fit with offending, namely, that the offending took place after all the clearing away had finished or anything like that.

So that it has to be a five to six minutes of offending commencing not long, perhaps I would venture not giving evidence, say, a minute or so, maybe more than that, after the boys left the procession and activities being such that no one else came into the sacristy during that period, and yet a moment’s thought will reveal to your Honours that, as Justice Weinberg has held and as we urge, it is not possible to fit five to six minutes of offending when the servers are coming in to bow to the cross and there and then the hive of activity proceeds to completion between that sacristy and the sanctuary.

Now, could I take your Honours to the way in which the majority dealt with this. I have, I think, tried to compress, without going to the particular material, propositions (a) and (b) in number 6, I am now going to (c). Could I take you first in the core appeal book to page 279. This is all under the subheading, picking up one of our obstacles, so‑called:

not possible that two choirboys could be assaulted in the Priests’ Sacristy after Mass by Pell undetected

It is that last word that picks up the questions of whether the three were in the room just themselves and no one else for the requisite period of time. Your Honours will see, in paragraph 292, what their Honours call the “possibility/impossibility” relevantly being considered, dependant, third dot item:

when the clearing away of sacred vessels and other items from the sanctuary commenced, and how long it took ‑

That, in the parlance of this case, is the activity contained within the “hive”. The reference to “private time” or the interval of decorum can be seen in paragraph 293, there is your five to six minutes typically.

And then, in paragraph 294 there is a consideration by their Honours of some differences in the evidence which concludes in paragraph 295, together with 296, was that the unlocking of the door and the servers:

bowing to the crucifix, occurred soon after the procession finished –

by which time, of necessity:

the door was already unlocked.

And your Honours see the way in which the majority expresses a conclusion from that. On that view, it was quite possible for the sacristy to have been unlocked and unattended at around the time the complainant said he and the other boy broke away from the procession.

I need hardly say that the time when they broke away from the procession is not, of course, the time when they enter the room, that is some short time later, but it was, as it were, available. And then their Honours say the clearing of the sanctuary had, of course, to await the end of the private prayer for parishioners and you can see the beginning of this notion of setting the stopwatch going on two matters, one the offending, after the boys reached the room, and the other, the private time. Of course, it is quite wrong to think of those watches being clicked at the same time. And their Honours correctly record their understanding, at least in this aspect of the Crown case, as presented to the jury, there is this gap during which the first incident had occurred, by putting those two sets of five to six minutes.

The evidence referred to in 297, obviously enough, raises – more than raises – a reasonable doubt concerning the possibility of the room being unattended once the clearing away had started, hence the importance of the interval because it was an interval before the clearing away started.

In paragraph 298, though, as their Honours put it, less clear, there is similar evidence concerning what happened, quote “Immediately after Mass”, from Mr Finnigan. Dr Cox, the organist, gave his evidence, which recalled during his 10 minutes recessional, servers being very busy:

taking them back out to the Sacristy.

And there you find the provenance of the expression “hive of activity”. And his recollection was that the removal commenced as soon as the procession had left. So there is room for difference in the evidence, but it does not help the Crown; whichever of those versions be correct, it would not be possible to have the room unattended.

And in paragraph 300, without any intervening steps of reasoning, dealing with the matters we have pointed to, their Honours say:

taking the evidence as a whole, it was open to the jury to find that the assaults took place –

and then you see the correspondence and equivalence:

in the 5‑6 minutes of private prayer time . . . before the ‘hive of activity’ described by the other witnesses began.

And then they conclude:

not bound to have a reasonable doubt.

Now, that manifestly proceeds on the basis that the interval being referred to in paragraph 300 is the interval in which the offending took place and thus the logical impossibility that we have argued in our written submissions, whereby the five to six minutes that starts as the procession leaves the sanctuary towards the west door, is occurring at the same time as the five to six minutes that could not commence until some short time after the procession had reached about halfway down the cathedral outside, after going through the west door and there is nothing in the majority that explains how that crux in their factual reasoning is to be dealt with.

For the reasons we have presented in our written submissions, the far preferable approach to an understanding of the evidence is that which your Honours will see in the corresponding parts of the dissent, paragraphs 964, 965, which I will not take your Honours to.

Now, we then note in 6(d) an argument which, in writing, has this proposition – this is paragraph 56 of the respondent’s written submissions in this Court:

The Crown contended that the first incident occurred after the altar servers from the procession had entered the Priests’ Sacristy and bowed to the crucifix, but before the post‑Mass “hive of activity” began.

The reference is to what I am going to call the “uncorrected” version:

The majority of the Court of Appeal –

writes the respondent here:

having reviewed the evidence –

and I have taken you to the whole of that receive:

held that it was open to the jury to find that the offending took place in the period posited by the Crown.

But the majority was not, with respect, considering the servers were elsewhere, having previously – that is, before the offending – entered and bowed to the cross. They did not, obviously not because that was an abandoned Crown case, not put to the jury – that is, put to the jury and then withdrawn as lacking evidentiary foundation.

And then in a manner that, in our submission, is not really worthy, there is a characterisation of our argument as proceeding, if you like, “like clockwork”. But this is a question, the appeal to the Court of Appeal, the appeal for which we seek special leave here, is about safeguarding criminal process and outcome and outcome by attending to the burden and the standard and what by reason of the course of the trial was open to the jury and it had nothing to do with what I have called earlier “stopwatches” and inexactness of time, if anything, will always conduce in favour of an accused pointing to reasonable doubt. Of its nature, it must be such as to where there is such an exactness, and there is an exactness here, when there is such an exactness, then if it leaves open possibilities inconsistent with offending, there is the reasonable doubt.

One of the reasons for a real weight of a proper significant forensic disadvantage direction is that it becomes a mockery to suggest that 22 years after the event anyone would be in a position – and this is true for the prosecution but the warning is not for them; it is certainly true for a defence – how could you, without mockery, criticise a forensic position for not having exact times of a liturgical procession that took place all that time ago. It is for those reasons, in our submission, that the argument in paragraph 56 is one which is bereft of merit. There is no foundation for a criticism that we have a clockwork approach at all.

Going on the estimates that it was the best anybody could do – and I mean the best the prosecution was doing – there needed to be the alignment of a five to six minute offending, their concept of gap or hiatus, in activities which started with the room being locked and not available, moved on to the room being unlocked, physically available, and then stopped – that is, the gap or hiatus would stop for the available period of time for offending when the room began to be occupied by a hive of activity.

Now, unless there could be such a period demonstrated so as to eliminate reasonable doubts arising from the unlikelihood of it being true, then of course there needed to be acquittal, and that was the burden of our argument not only at trial, certainly forcefully at trial, but on appeal as well.

We do not apprehend that it is said by the respondent in this Court that what was withdrawn by the prosecutor before the jury can somehow be revived to vindicate the way the majority reasoned, so we put that to one side at the moment. However, when one turns to paragraph 61 of the respondent’s written submissions in this Court, there is a reference to the “interval of decorum” – lo and behold, estimated by Mr Potter as five to six minutes ‑ and simply the proposition that when this interval would end, of course, would depend on the circumstances, including how many people were in the cathedral.

Now, assuming that the prosecution is not here inviting speculation about an unusual occasion, we are left with the way in which the Crown case estimated that interval of decorum, five to six minutes. That does not mean it was always five to six minutes, or that a stopwatch was used to measure it, but it was the best that could be done.

If there is an exactness, it would only be provided by speculation or guess that one could push to an extreme of an estimate in order to start constructing some kind of fit of the kind that the Crown attempted. Now, let me make it clear, there is no way on the evidence here that you can point to any estimate with an extreme by which fits can be forced, so as to have five to six minutes of offending without there being people coming in and out of the sacristy, clearing the sanctuary away.

In our submission, when one sees the way in which it is put in this case, the lack of clarity even as to whether the abandoned trial argument is in fact being returned to, there is a really very striking demonstration of the difficulty for the Crown case presented by the crowded, busy and ritual nature of what was going on. These are not deserted premises. These are not premises where nothing is happening in the places critical to be secluded at the time of the offending.

This is an argument about whether there was somebody in a room said by the complainant to have no one other than the other boy and the Archbishop. It is separate from an argument that says the sheer unlikelihood in the sequence of events of offending requiring a gap when no gap was provided for ritually or inexorably, it self‑conduces on the whole of the evidence to a reasonable doubt. That is a separate point.

The point that, in our submission, the majority got wrong was their illogic concerning the coincidence of this five to six minutes by the factually incorrect misunderstanding that the five to six minutes of the offending could not possibly have commenced at anything like the same time as the five to six minutes of the interval of decorum.

In proposition (f) of topic 6, we draw to attention in relation to paragraph 59 of the respondent’s submissions the way in which it is, we think, now put. I think this is a new version. You will see it simply says:

The altar servers would have then left the Sacristy – either for the workers’ room, where they disrobed, or for the sanctuary to assist Potter. The Priests’ Sacristy would be unlocked and open.

Immediately, we need to observe that the notion of assisting Potter is of course part and parcel of the hive of activity that ferried him to and fro. So that really will not serve. But, as one can see, this is an argument – and I am now referring to our reference to Mr Connor’s evidence and Mr McGlone’s evidence – that does not sit with their evidence, Crown witnesses called and certainly not challenged on this.

I think nobody would have dreamt at the trials that this was evidence requiring challenge. Query whether even it was appreciated it might be adverse. In any event, it was not put to them. We do not think – and I would say this with all the tentativeness one should feel in the face of such a large record – we cannot find it being put by the prosecution in closing, that is, a version that says yes, the servers did come back before the offending, but then left, went somewhere else and left an available gap for the offending.

I am not talking about the case that was abandoned before the jury; I am talking about some new version that we seem to see in paragraph 59 of the respondent’s written submissions here. That new approach, assuming, as I say, it is not simply a bold revival of the withdrawn case before the jury, we do not think either was submitted to the appellate court, although in the citations that we have assembled for that, in 6(f)(iv) of our outline, you will see the closing reference – I draw it to attention – in a summary of references – I do not need to take you through it; it is not before this Court, and I am volunteering this matter – which contains material that, trying hard and charitably, we think might be regarded as providing some foundation for this argument. It does not. That will be a matter for our friends to take up or not.

The material that we have drawn attention to in that site makes it clear that this was not an argument, we say, to the Court of Appeal and that the references to the same pages of transcript that you find in that document that we have drawn to attention…..and parenthetically are for a different purpose altogether. Having noted that by way of cue, as it were, it really is a matter for the respondent to try and answer if they can the proposition that what they are proposing in 59 surely is not revival of what was abandoned before the jury as lacking foundation and does not seem to have been put to the Court of Appeal.

Your Honours then see that we draw to attention the content of Mr Potter’s evidence which simply does not support the notion that servers who have come into this unlocked sacristy leave it for a sufficient time – leave it for a place sufficiently remote and for a sufficient time to render plausible the offending with three people only in that room.

In proposition 6(g) we draw to attention the error that we identify in paragraph 62 of our friends’ written submissions. It is not possible to read those passages – I will not read them to the Court – to come up with anything like the requisite gap, to adopt the expression and reasoning of our learned friends. We do not understand that this is, as it were, putting to this Court, something that was at the forefront of the case below.

Now, your Honours, proposition 7 is a different topic altogether. Your Honours are familiar with it. We address this as you see in paragraphs 22 and 23 of our written submissions. I do not want to labour the point. The evidence at trial was, as we note in paragraph 23, from the people with the best knowledge of these robes in terms of the assistance they gave in putting them on and taking them off, that it was not possible to do what the offending required. There was no attempt – obviously no attempt to doubt the capacity, that is, the experience of those two witnesses to give that kind of evidence. That is what they did; part of their job.

The prosecution had leave to challenge the evidence concerning incapacity or inability for the robes to be moved in the requisite fashion. They did not take advantage of that leave. The people who knew the most about the manoeuvrability of the vestments, which played a part in the narrative retailed by the complainant, were not asked questions by the prosecution about a matter which the prosecution knew in advance was adverse to the prosecution’s case.

KIEFEL CJ: Mr Walker, what did the majority say about the evidence of Monsignors Portelli and Potter on this point? I am not referring to the majority’s own observations, but the evidence of these two witnesses.

MR WALKER: In essence, they prefer their own observations in judicial chambers to those of the witnesses, a matter which we note was wrongly then used by their Honours to, to put it generally, discredit Monsignor Portelli. This is the matter that occupies the second half of our rather lengthy footnote 13, which I made reference at the beginning of this afternoon. So the short answer to the Chief Justice’s question is how was that evidence dealt with by finding their Honours’ “in chambers” experiment showed that that evidence was wrong.

Now, with great respect, that again is to mistake the notion of what is in question, first of all, at trial, and then an unreasonable verdict appeal. Just as, to approach it from a different direction, it is not a question of the sufficiency of evidence, so also where there is evidence, unchallenged, that the jury is not invited, either to disbelieve or to feel any lack of confidence in, then in our submission the notion that the jury is open to convict, that is, that they must not feel a reasonable doubt on the basis of such evidence is unorthodox.

NETTLE J: Might they not have been referring to Portelli’s evidence that it could be moved if one loosened the cincture?

MR WALKER: I do not think so, your Honour, I do not - that is not the way in which their Honours reasoned at all.

NETTLE J: Just looking at 256:

entitled to consider Portelli’s evidence as a whole, including his answers regarding the impossibility –

In his evidence at 507 of the appeal book, 593 of the transcript, jumps in the end to well, it is possible only if you loosen the cincture.

MR WALKER: Which I would urge means only if you do something which you would not be doing.

NETTLE J: Well, unless you had in mind to do what was alleged against him.

MR WALKER: One of the reasons why - I think there a couple of aspects here. The first thing is it is speculation that the cincture was loosened – that is the first thing. There is no evidence that it was.

NETTLE J: Except for the complainant’s evidence about loosening the belt or his trousers or something, as he put.

MR WALKER: I think I am bound to concede not so much that that refers to the cincture, but it is not exact ecclesiastic language.

NETTLE J: No.

MR WALKER: But in paragraph 146, what the majority is doing explicitly puts to one side this question of the cincture and its significance:

To our observation, it was well capable of being manoeuvred – while the cincture was firmly tied at the waist -

So that what they were doing, they were not reasoning by reference to the theoretical – when I say “theoretical”, the possibility that the witness contemplated was if you started to undo the vestments in a particular fashion, then given that they are all ultimately removed when you start to undo them, certain things at certain stages become possible.

It was not an answer which, the way the question was put nor the sequence in which it appeared, amounted to, as it were, a withdrawal or contradiction of any of the evidence the witness had given concerning what was not possible. In other words, the only way this could be done is if something else was done first. Well, eventually all the robes come off.

But the majority did not rely upon that at all. No doubt of course the evidence is, as your Honours know, that the cincture is no mere ordinary belt. Tied in five places, it is secured to the stole, and it is one of the means by which the microphone is attached. So this is not something that the prosecution permitted the jury to know anywhere near enough about, to permit that which is now only a speculation, namely the cincture was sufficiently eased, in accordance with the witness’ evidence, so as to permit what the witness would say in that circumstance would render possible that which would otherwise be not possible.

EDELMAN J: What was the position of the parties before the Court of Appeal as to what the Court of Appeal could do with the physical robes? Was the appellant’s position the same as it was in relation to the video recording?

MR WALKER: No. I cannot remember the exact words; I will try and obtain them for you. But I think the parties had the same answer, which was affirmative to the President’s question, I think, as to whether it was in order for them to try it on. When I say try it on, that is where my memory is failing me. I do not know whether try it on or do something else. I am very grateful to my friend; I do not want to rely on memory. May I get the exact words of the consensus during the appeal hearing when that matter was raised?

I am grateful to my friend, though I confess I do not have a recollection that its status - the robes’ status as an exhibit played some part in what we were being asked. Again, I am subject to correction, after I have investigated this properly, but there was no talk of a protocol for judicial experiment, nor for that matter an opportunity given to us to respond to the result of any judicial experiment.

Alas, as your Honours know, the matter is complicated by the fact that Justice Weinberg has a view from different observations and, in our submission, all of this rather highlights that we have moved too far away from the question whether it was open to the jury, that is, is this a doubt the jury must have felt. The jury had before them evidence uncontested that it could not be done, and the jury did not have evidence before them that the steps necessary to make that which could not be done able to be done had been taken.

BELL J: But the jury did have the robes as an exhibit in the jury room.

MR WALKER: They did, they did. Unfortunately, none of us knows what, if any, experiments they undertook though we can put all that to one side. Could I next come to proposition 8? This is really the kind of circumstance which many, many years after the event may be about the only reason, apart from the denial, that an accused in such a case can, as it were, start to contest a complainant’s narrative.

This is one of the reasons why particulars matter. When did it happen, where did it happen, can be really important because of the testing of circumstances entailed in the Crown case for the purposes of demonstrating reasonable doubt. This one was the kind of circumstance which could only be examined after there were dates.

Your Honours know this history, I think, but I should summarise it as follows. The charged periods were, I will not call it arbitrary, but they were just the second half of the year at first. The second episode following the committal where doubts were introduced by reference to the complainant’s evidence about when the second episode could have occurred, the period was again extended, perhaps not arbitrarily but simply to embrace the two months of the next year, the two months being significant because the first month is holidays and no one is there.

Now, there are only so many the features of the complainant’s account that can be discarded without an appellate observer regarding it as necessary, that is the jury must have felt reasonable doubt. In this case, just to test it hypothetically, the notion that this occurred after the Archbishop had said or presided over a solemn mass is obviously not something that can be lightly discarded in evaluating whether it was open to the jury to convict on that narrative alone and there was nothing else in this case. That is only hypothetical, because that is not this case.

But once one had the complainant saying both these occasions were occasions when the Archbishop had played a role presiding or saying mass, and that connected with vestments, et cetera, then even so long after the event investigation could be carried out, alas, not only by the police, to find when those available occasions were in what I will call the target period.

The target period started off, as your Honours know, around spring and the temporal relation of the two episodes was the second was over a month after the first. But the first version was in 1996, leaving aside an earlier version which got the year altogether wrong, but in 1996, in the choral year 1996. The 15th to 22nd December after investigation again, alas, not only by the police or even by the police, produced themselves as the only candidate dates for that kind of attendance by the Archbishop at that kind of service.

Presumably – I do not wish to mind read, but presumably the 15th and the 22nd of the same month was regarded as a little uncomfortable for a supposed recollection of over a month apart. So that the particulars, if I can call them that – they are scarcely particular – were extended to the end of February.

That then involved a search - again it would appear not by the police or, if so, very incompletely by the police – for a date that would fit a necessary salient feature, the Archbishop presiding or saying mass, and not too far distant. The further distant, obviously, the less cogent would become a case which after all had initially estimated 1996 – originally estimated 1996 and at an interval of over a month.

Now, over a month does not literally mean five years any more than it means six months; the colloquial expression that obviously becomes less cogent the longer the period gets over, say, two months. So 23 February, by research into ecclesiastic calendar and record, produced an occasion.

Your Honours will recall the importance both in what passed for an investigation and the prosecution case of the first episode of understanding people who would be eyewitnesses if anything had occurred and prosecutorial ethics obviously emphasises the importance of that, hence Monsignor Portelli, hence Mr Potter, et cetera, et cetera.

But the second episode, there was a man in the same position, literally, that is, in terms of physical proximity throughout the alleged events, and that is the Father Egan of whom you have read of whom we know nothing, and that is used against us, if I could put it that way, in the reasoning of the majority, and we think the respondent says in effect, “Well, that’s your problem”.

NETTLE J: Well, it is your problem, is it not? You did not ask them to call him.

MR WALKER: There is no duty or obligation of any kind for an accused to assist in the assembly of a case.

NETTLE J: Nor do you suggest that it was productive of a miscarriage of justice that the Crown did not call him.

MR WALKER: This goes only to unreasonable, your Honour. Your Honour is right.

NETTLE J: Is it not entirely neutral, the fact that Egan was not called?

MR WALKER: No, it is not entirely neutral because his presence being known one cannot illuminate the reasonable doubt that arises from not knowing what he would have to say about those matters.

KIEFEL CJ: What inference do you draw?

MR WALKER: We do not draw a factual inference at all, your Honour. There is simply a reasonable doubt left. Now, that is true whenever there is inadequate investigation. It is not a miscarriage case when the police have simply not looked for something. It may be a miscarriage case when the prosecution has it and does not use it – I accept that and this is not a miscarriage case. But where there has been inadequate investigation, a viable theory, inconsistent with guilt, simply not explored by the investigators, establishment of that absence of investigation goes to an unreasonable ground. That is the way we put it.

BELL J: That generally requires that the hypothesis consistent with innocence is brought into play and is brought into play by the defence saying, “Father Egan might have accompanied the accused. Where’s Father Egan?” This just was not made an issue, was it?

MR WALKER: No. Your Honour is quite wrong, in both respects.

BELL J: It was an issue?

MR WALKER: It was proved that Father Egan was there.

BELL J: I understand that.

MR WALKER: And it was argued that he was not the subject of any investigation. As you know, there was a cross‑examination of the informant for just that purpose – to establish that it would have been reasonable to make inquiries about and from such a man and they were not made. The informant was invited to explain why not and he had no explanation.

BELL J: Yes.

GORDON J: Is that what Justice Weinberg addresses at 865?

MR WALKER: One of those matters, yes, your Honour.

GORDON J: Is that a complete and accurate summary of the position?

MR WALKER: Could your Honour give me a moment before I answer that question. I confess I am not sure whether the last two sentences are intended to be a continuation of the paraphrase of prosecution submission or whether it is his Honour’s commentary and that may not matter here. I do not understand it to be in contest that Father Egan was there. There was evidence that he was there.

BELL J: There was evidence that he was there. The matter I was taking up with you, Mr Walker, was in circumstances in which the defence did not ask for Father Egan but did indicate the witnesses that it thought in fairness the prosecution should call it might be that the circumstance is neutral, that he was not. But your point is the informant was cross‑examined in a way to make an issue of the failure to call him.

MR WALKER: Yes.

GORDON J: That is what 868 sets out. Sorry, Mr Walker, I meant to take you over the page.

MR WALKER: Yes, is the answer.

NETTLE J: Just to come back to the Chief Justice’s question, what is the inference one draws from the Crown’s failure to call Egan?

MR WALKER: That it is unknown whether Father Egan saw any such thing at all, and the nature of Father Egan’s connection with the occasion is such as therefore to leave a gap in the investigation. That itself produces a reasonable doubt concerning the capacity of the evidence that was presented – and that is just the complainant – to prove the commission of the offence.

NETTLE J: Is it an inference that anything that he might have said would have not assisted the Crown or simply that we do not know what he might have said?

MR WALKER: It is the latter.

NETTLE J: Well, that takes you no further, does it?

MR WALKER: Your Honour, an absence of investigation of something of its nature, calculated to cast light on whether or not the offence was committed, goes to an unreasonable ground.

NETTLE J: We are not arguing an unreasonable ground.

MR WALKER: No, I am arguing unreasonable ground. I am not arguing miscarriage ground.

BELL J: The complainant did not say, as part of his recounting of incident 2, that Father Egan or the father who had celebrated the mass that day was present. There is a limit to how far one can go, surely, in saying the failure to investigate itself gives rise to a reasonable doubt.

MR WALKER: Of course, of course.

KIEFEL CJ: Mr Walker, this incident is said to have occurred in the course of processing.

MR WALKER: In a sense, yes – not the Archbishop.

KIEFEL CJ: No, no. But Father Egan was placed where on the ‑ ‑ ‑

MR WALKER: Next to the Archbishop. That is the whole point.

KIEFEL CJ: I see.

MR WALKER: In very close physical proximity to the Archbishop. May I say about the complainant – this is another discrepancy. On any view of it, this must be the Crown’s position, too. There are aspects of the complainant’s version of the second episode that cannot be right. Let me explain.

I have given the history of how 23 February came to be the designated date. It is a late development, one might think from the way in which the policeman answered the question about lack of investigation, that it came after the investigation was seen as done and dusted. It does not make it unimportant.

The complainant said the second episode was an occasion when the Archbishop said mass; 23 February was not an occasion when the Archbishop said mass. He presided, which means that he watches somebody else say mass - Father Egan. There is therefore nothing that can be cast upon us as some kind of deficiency in assembling a case against us by reference to the way the complainant had put it.

KIEFEL CJ: But there was no issue but that on that occasion Father Egan celebrated mass, was there?

MR WALKER: That is my point; that Father Egan celebrated mass. Father Egan – it is also no issue – was in very close physical proximity to the Archbishop. Therefore, like Monsignor Portelli, he is an obvious person to have been investigated. He was not investigated at all.

EDELMAN J: Is it fair to say that the lack of investigation was not really an issue at trial, although it was an issue on appeal?

MR WALKER: No, it was very much an issue on trial. It was cross‑examined on, and then it was address to the ‑ ‑ ‑

EDELMAN J: Paragraph 187 on page 236 is simply incorrect, is it?

MR WALKER: Probably, your Honour, yes, if it says that, because there was not only cross‑examination; there was address to the jury for the defence, to that very effect. I am sorry, 187, your Honour?

EDELMAN J: In the application book 236.

MR WALKER: I think that last sentence is referring only to the proposition not mentioned at all by the judge in his charge to the jury. During counsel for the defence address to the jury, transparency slides were used, and one of them concerned this very matter. It is the subject of comment - I do not think your Honours have this, but I am sure it is common ground - of the address as transcribed at page 150, 9 to 10. The slide in question said, if I recall correctly, something like this: why have not the police investigated who was there - where is Father Egan?

So it was a trial issue, the matter that there had been just no investigation as to what the man standing next to the Archbishop, wrongly described by the complainant as celebrating mass, but in fact presiding, on the day which the prosecution had selected by an adjustment of their case in order to fit, supposedly, that was fair and square raised by the defence. It is not a miscarriage point; it is a lack of investigation point. Lack of investigation point of its nature goes to - I do not say it concludes - it goes to questions of reasonable doubt.

So it would not be worthwhile observing that an investigation was characterised by an incompleteness produced by confirmation bias unless one were able to say, and an investigation suffering from that, alas, not unknown defect, is one apt to leave reasonable doubt. That is most certainly not a matter which is miscarriage only, or even at all. It is an anterior stage. The Crown does not present evidence necessary in order to dispel reasonable doubt. There is no speculation involved by defence in pointing to the fact that there was a person there. There is no explanation of why they cannot give evidence. There is a person there right next to the Archbishop, and we do not know - and that is in answer to your Honour’s question earlier - we do not know what he would have said.

Everyone agrees, we think, that it is not for us to call him. Everyone agrees, I think, involved in that proposition, it is not for us to tap the policeman on the shoulder to investigate him. But Mr Richter, not known for excessive subtlety, certainly did something like that forensically in court, with no result in terms of knowing anything about it except for the blank, one might even say truculent, answer by the policeman. He does not have an explanation as to why he did not investigate.

It might be that 23 February just came up too late in the day for the present business to permit it to be revisited, but there it is.

BELL J: So you are not submitting anything like a Jones v Dunkel inference.

MR WALKER: No.

BELL J: What you are saying is simply that you went to the jury on the basis, how can you be satisfied beyond reasonable doubt when this person was not called?

MR WALKER: It is exactly –

BELL J: On that basis, it really was barely necessary even to put the matter to the informant. You are simply saying the evidence, such as it is, is open to criticism on this account.

MR WALKER: Yes. As to whether it is barely necessary to put it to the informant, I am not intent on arguing, as it were, against having done so; far from it. In our submission, it is an orthodox and very often very effective defence approach to go through a number of matters which could have been investigated, and then by argument later, sometimes with evidence, should have been investigated – and it all tends in one direction – because they need to be investigated in order to eliminate reasonable doubt.

That is why, let me make it very clear in answer to Justice Nettle’s original question on this point, no, this is not a miscarriage point, and yes, your Honours have observed correctly, I am not attempting a novel application of Jones v Dunkel. No, it is not that. It is a really simple proposition that a criminal trial, accusatorial relevantly here, involves the assembly of sufficient material to dispel reasonable doubt as to guilt, and inadequate investigation is a classic way for that to fail.

BELL J: Was there in fact evidence that Father Egan accompanied the applicant in the procession, or was it simply an inference from practice?

MR WALKER: I think it is a combination of the two; that is, Father Egan was the celebrant, and celebrants accompanied the presiding archbishop, and I think there is no contest about that.

BELL J: Thank you.

MR WALKER: I think that is captured in the first sentence of paragraph 28 of our written submissions.

BELL J: Thank you.

MR WALKER: I hope so.

KIEFEL CJ: Mr Walker, I know that we have been discussing the incident on 23 February. Did you wish to add more, not that I am willing you to add to your submissions, but no more about item 8 on your outline, the choir rehearsals?

MR WALKER: I do want to add something about item 8 on the outline. I am sorry, I think I got taken into Father Egan. That came about because I was trying to explain how the dates had come up.

KIEFEL CJ: Yes.

MR WALKER: One of those other circumstances by which a defence many years after the event can, as it were, get some purchase on an allegation that otherwise may only simply be able to be blankly denied, is exactly that kind of circumstance. I was asked this morning by Justice Edelman whether there was evidence other than the scheduling of the choir rehearsals for the fact that they took place. In the parties’ further materials volume, page 48, there is conveniently contained with citations to transcript - not all of which you have, but I do not think anyone would have any difficulty with the summaries ‑evidence under the headings “Finnigan”, “Cox” and “Mallinson”.

GORDON J: Sorry, what page was that, Mr Walker?

MR WALKER: Page 48, your Honour.

GORDON J: Thank you.

MR WALKER: Your Honours will see boxes: Finnigan, Cox and Mallinson. The first sentence of each of the entries there constitutes evidence we think beyond an inference that what was scheduled did in fact occur. Now, the importance of this is that, according to the complainant’s version, after escaping the sacristy where the offences had allegedly occurred, the boys went to the choir room where half the choir was disrobing and they all proceeded to leave. In other words, conduct quite inconsistent with the conduct – carrying out that day of a choir rehearsal ‑ yet another of the discrepancies.

That is the significance, with respect, of the way in which the choir rehearsals stands as a ground raising reasonable doubt about whether things could or did, could have or did in fact happen, as the complainant alleged. In our paragraph 25 of our written submissions we have given the citations for the movements according to the complainant and we note that cross‑examined on his account in relation to the rehearsals that occurred, that he was quite unable to provide any explanation.

Now, that is not quite the same as evidence which has the accused absent from the place he needed to be in order to commit the offending at the time when he is alleged to commit the offending, but it is, in our submission, independently and obviously compounding in combination with all others, a direct contribution to the raising and leaving of reasonable doubt.

I have said, I think, a deal about 23 February having been selected and your Honours will note our citations for that forensic course in paragraph 26 of our written submissions. It may provide an explanation but not, as it were, a justification for what fell out thereafter with respect to it. Could I take your Honours to the way in which the majority deal with an aspect of this at ‑ ‑ ‑

GORDON J: We are now dealing with incident two?

MR WALKER: Yes, we are, proposition 9, 10, 11 and 12. I have dealt with 12 out of turn.

EDELMAN J: Just before you move away from the rehearsals, this is one difficulty that I have with the absence of some of the evidence, is the chart that you took us to of the agreed parties’ position does not seem to be consistent with what the majority say was Mr Mallinson’s evidence about the rehearsals at paragraph 226 on page 250.

MR WALKER: I am not sure the table is inconsistent, your Honour.

EDELMAN J: The table says that Mallinson confirmed that they were to take place and then the ‑ ‑ ‑

MR WALKER: Yes, there may be an ambiguity there.

EDELMAN J: The reasoning is that he was not aware whether they did take place.

MR WALKER: Yes, I may be wrong. I do not apprehend that in light of what Mr Finnigan and Mr Cox said on the topic and in light of Mr Boyce’s position to the Court of Appeal at the hearing of the appeal there is any dispute at all that they took place ‑ ‑ ‑

EDELMAN J: Yes.

MR WALKER: ‑ ‑ ‑ and that in attending to consideration of an argument about the significance of the scheduled rehearsals for the raising of reasonable doubt about the version given by the complainant that it has not only been scheduled, it is the fact that they happened. I suppose, your Honours, there is another perhaps more tortured way of putting that. The fact that it was scheduled and there is no evidence of cancellation makes it seriously possible that it did take place and that serious possibility is enough to cast doubt on at least that aspect of the version which, combined with other things, is enough to contribute to the raising and leaving of reasonable doubt as to guilt.

I was taking your Honours to page 249 of the book. I simply wished to draw to attention in terms of a wrong approach in relation to discrepancies in evidence that the approach taken – I am sorry, your Honours, I have got ahead of myself. Can I complete what I wanted to say about the second incident as follows. I have dealt with the Father Egan point. I do not need to elaborate what is made in proposition 11. Clearly enough, that is not enough in itself logically to dispose of a case but, taken with all the other evidence, clearly contributes to answering unfavourably to a prosecution the question whether it was open to a jury to convict. On any view of it, there were others present.

Proposition 10 calls in aid the material that I have already sufficiently addressed on because the greeting on the front steps there obviously is inconsistent, directly contradicts, the notion of the Archbishop plunging into the middle of a procession near the choir room and sacristies in order to commit this assault.

NETTLE J: It was not the greeting on the steps, only on occasions when there was an external procession.

MR WALKER: No, no, no.

NETTLE J: Both?

MR WALKER: That was raised at the trial and it was resolved that ‑ ‑ ‑

NETTLE J: It was all timed.

MR WALKER: ‑ ‑ ‑ it happened on both kinds of occasions.

KIEFEL CJ: Not limited to the occasions when the Archbishop was celebrating mass himself.

MR WALKER: No. The important distinction between celebrating and presiding did not operate so far as congregants wishing to speak with the Archbishop or the Archbishop making himself available to do so. I am reminded and your Honours have seen that paragraph 28 of our written submissions contains material germane to those answers I have just given.

Could I then move to proposition 13, about which we have already said some things. One of the examples I wanted to take your Honours to starts with – could I take you first to page 218 of the core appeal book. I have already put in address some argument concerning the matter which starts in their Honours at paragraph 126 and it concerns this use by the defence of the:

language of impossibility.

At paragraph 128, in the first sentence one sees a move towards what we submit is ultimately impermissible, altering the nature of the burden and standard, and ‑ ‑ ‑

KIEFEL CJ: Albeit according to the way in which their Honours are putting it having been led there by the way in which the defence ran the trial.

MR WALKER: That is the whole point of this passage and some others. I have already addressed that to a degree.

KIEFEL CJ: Yes.

MR WALKER: There was no language capable of working the dire outcome that this represents. This was not a case where the issue posed simply was: is it possible the accused committed the offence? The judge did not direct accordingly. Defence counsel did not address accordingly. In our submission, this was a matter really taken up by the majority in the Court of Appeal ‑ pursued, I should say, in arguing, and raised by the President with me.

The notion that this fits, as it were, a framing of issues idea or being bound by the way you have conducted the case is bizarre in relation to the burden of proof and the standard of proof and it is also not fair to Mr Richter for the reasons I put before the adjournment. Of course, it is proper in pointing to a reasonable doubt – that is, the incapacity of the Crown to prove beyond reasonable doubt the offending – of course, it is possible on instructions to say, “This is evidence supportive of the proposition, showing if you like, proving if you must ‑ that is, no onus, of course ‑ that what is alleged against me could not have happened”. The notion that a forensic position of that kind by an accused, which is surely the essence of an accusatorial ‑ full accusatorial participation in your trial, is not one which could possibly have produced that outcome.

KIEFEL CJ: You say, at trial, it was understood as such by reference to the directions given by the trial judge to the jury?

MR WALKER: And also by reference to the way in which it was put ‑ ‑ ‑

KIEFEL CJ: So that it only developed into this particular test in the Court of Appeal?

MR WALKER: That is right, that is right. One will see its genesis in the transcript of argument in the Court of Appeal. I am not suggesting you should look, but that is where it first appeared. Of course, the Crown did not go to the jury on the basis that they had somehow slipped away from their burden to prove the case beyond reasonable doubt, and there was never any objection to the trial judge giving orthodox and forceful directions to that effect. And, as we have drawn to attention, throughout defence address it was made clear that impossible was not something that we had to prove, but that if we showed it, then obviously there is a reasonable doubt. The same would be true of improbable, the same would be true of the possibility, being in doubt.

I do not need to redouble examples, perhaps paragraph 128 is an emblematic version, what one sees at other parts in the reasoning of their Honours. The references I have made in answering some of your questions just now are contained at the end of proposition 13 in our outline, you will see the relevant part of the charge, could not be clearer, and you will see also the passages from Mr Richter’s closing, to which we have made reference there in the applicant’s further materials pages 90 to 91 and 94 to 95, I do not need to read them.

Your Honours, proposition 14 relates to what I said this morning concerning a wrong, piecemeal approach adopted by not grappling with compounding improbabilities, so that, one by one ‑ and the citations here are citations ‑ I will not, given the time, take your Honours to them, but we urge on your Honours that the pattern is revealed, that is, the citations from the majority in the Court of Appeal, in the parenthesis in our proposition 14.

What they reveal is that the evidence is examined, and, whether rightly or wrongly, the conclusion is reached, with respect to each item, that the matter said by Mr Richter to be impossible was possible. And it is then put to one side as capable of contributing, on its own or in combination, although combination is not considered in terms, to the raising or leaving of a reasonable doubt. And thus, as it were, the error that we have referred to in proposition 13 is redoubled in its detrimental effect by the error in proposition 14.

Your Honours, again given the time, I do not want to tarry on proposition 15. I have, I think, sufficiently articulated to your Honours the way in which we say the law or rule in M should have been applied in this case, and in particular I have addressed matters concerning credibility as an insufficient or worse circular way of dealing with such an appeal.

In proposition 16, we draw a contrast, as we do in proposition 15, between the approach taken by the majority and the approach you see in the reasons of Justice Weinberg. With great respect, we adopt in this Court the way in which Justice Weinberg puts the matters in both propositions 15 and 16 in our outline. They are, with respect, principled in accordance with authority, and compelling in terms of the policy of the law.

So far as the point that we have summed up as a failure by the majority to advance reasoning why SKA, Palmer and Liberato did not inform the proper approach, for present purposes, in supplementing and emphasising what we have written in our paragraphs 36, 41 and 47, and in our reply paragraphs 5 and 6, we would single out this.

It is critical in discharging the appellate function under these provisions in such a case not to regard the evident acceptance by the jury of the credibility of the complainant as capable of returning to explain away matters arising from the rest of the whole of the evidence, which casts doubt upon whether that which has been regarded as credible is also beyond reasonable doubt correct.

This Court in SKA and Palmer, very directly in each of those, in passages with which your Honours are familiar, particularly from the way Justice Weinberg has referred to them and we have put in our written submissions, directly addresses the inappropriateness of, as it were, simply saying the jury saw and heard the complainant and that disposes of an unreasonable grounds argument.

That has never, hitherto, found any place in any pronouncement of this Court and yet, in our submission, that is in effect what has happened in the majority, bearing in mind that there is otherwise this simply clearing of the decks by their Honours, by which they find things Mr Richter described as impossible not to be impossible but rather to be possible.

With respect to Liberato, as your Honours appreciate from the way we have argued that in writing, the key point that we would wish to emphasise is the inappropriateness of posing an issue at trial and thus the issue on appeal as being the capacity or openness for the jury to believe a complainant.

That, I stress, is the beginning, not the end of the inquiry both at the trial and at the appeal, after all, if the complainant is not believed, there will obviously be an acquittal. The point is that, if the complainant is believed, as this Court has said after Liberato in relation to the classic passage particularly of Justice Brennan in Liberato, it simply will not do to conclude the inquiry at a preference, say, when there is oath against oath or even with a preference for a complainant compared, say, to a record of interview.

More must be done in order to attend to the true question which is not, “Do I believe the complainant?” but whether, having believed the complainant, there remains any reasonable doubt as to guilt. That is the whole of evidence inquiry which necessarily involves in a case where there is more of the complainant’s evidence to consider, attending to what is raised by that other material.

BELL J: Mr Walker, can I drag you back to the evidence in one respect just to clarify something. In the reasons that the trial judge gave for his section 38 ruling, in the supplementary book of further materials at page 37, paragraph 60, his Honour accepts that, if the applicant was standing on the steps of the cathedral for 20 minutes or so following Sunday mass, then the applicant could not have been in the sacristy at the time of the alleged offence charged in the first count.

MR WALKER: Yes.

BELL J: Another way of characterising that is to say that if that were the evidence, it would provide an alibi.

MR WALKER: Yes.

BELL J: Then one turns to the joint reasons in the Court of Appeal at 324, 480 and their Honours there summarising Monsignor Portelli’s evidence, describe it in summary that the applicant’s practice was to spend between 10 and 20 minutes. Now, I understand your submission is, the offence charged in count 1 could not have occurred, if the meet and greet occupied as little as 10 minutes, but I am just wondering if there is a finding in the Court of Appeal that would support that conclusion.

MR WALKER: I do not know, your Honour. I will have to search.

BELL J: Well, perhaps it is just ‑ ‑ ‑

MR WALKER: In my mind, the Crown later in the trial – maybe at the appeal – accepted that 10 minutes was too much.

BELL J: I see.

GORDON J: There is a footnote numbered 3 in your submissions ‑ ‑ ‑

MR WALKER: I am sorry, your Honour. I am sorry to interrupt but I have got an answer ‑ ‑ ‑

GORDON J: There is a footnote to this reference.

MR WALKER: There is a reference in paragraph 981.

GORDON J: Eighty‑one.

MR WALKER: I am sorry.

GORDON J: It is in footnote 3 of your submissions, which you took us to before.

MR WALKER: I am very sorry to appear to have interrupted you ‑ ‑ ‑

BELL J: So it is common ‑ ‑ ‑

MR WALKER: ‑ ‑ ‑ but I am glad that it was to say what you were about to ask me, your Honour: is it paragraph 981.

BELL J: It is common ground, then, that 10 minutes of meet and greet suffice to provide an alibi.

MR WALKER: Every time I say common ground, I suppose it should be understood as a challenge to my friends, and so it will be here. I am simply reading, in the way Justice Weinberg records it at 981 ‑ ‑ ‑

BELL J: Yes, 981.

MR WALKER: ‑ ‑ ‑ which is the source of my recollection I was giving you, inexactly, earlier ‑ page 455, page 981.

BELL J: Yes, I see.

MR WALKER: That second sentence I think means it is common ground, however reluctantly.

BELL J: It would be interesting to know, do we have, in our materials, that part of Mr Gibson’s address. We have got sections of the addresses.

KIEFEL CJ: Perhaps Ms Judd could deal with this tomorrow morning, Mr Walker.

MR WALKER: If it please, your Honour, I was just about to give a reference which I hope will assist. In the applicant book of further material, at page 20, in the ruling by his Honour, pre‑trial ruling, you will see the earlier position taken by the prosecution:

that had the accused stood speaking with people after Mass for 10 minutes only that this would in fact not be inconsistent . . . As the argument developed, I understand Mr Gibson to have retreated from this position.

That is the source.

BELL CJ: Yes.

MR WALKER: May it please, your Honours, those are my submissions.

KIEFEL CJ: Yes, thank you, Mr Walker. I assume that you would prefer to commence your argument tomorrow morning, Ms Judd?

MS JUDD: I do not mind. If the Court prefers, I am happy to do a small point, but I am also very happy to start tomorrow.

KIEFEL CJ: I think we might adjourn. The Court will adjourn until 10.00 am tomorrow.

AT 4.12 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 12 MARCH 2020

[2020] HCATrans 26

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Sentencing

Appeal

Procedural Fairness