Pell v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0029

GEORGE PELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 and 6 June 2019
DATE OF JUDGMENT:	21 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 186	First revision: 22 August 2019 para [386] Second revision: 6 December 2019 para [418]
JUDGMENT APPEALED FROM:	[2019] VCC 260 (Chief Judge Kidd)

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CRIMINAL LAW – Appeal – Conviction – Sexual offences – Sexual penetration of child under 16, indecent act with child under 16 – Whether verdicts unreasonable – Crown case depended on complainant’s account – Second alleged victim deceased – Whether complainant credible and reliable – Whether alleged offending improbable – Whether practical impossibility – Opportunity evidence – Whether realistic opportunity for offending to occur – Reasonably open to jury to convict – Appeal dismissed – M v The Queen (1994) 181 CLR 487, Libke v The Queen (2007) 230 CLR 559 applied – Criminal Procedure Act 2009 s 276(1)(a).

CRIMINAL LAW – Trial – Evidence – Jury aids – Animation – Moving visual representation – Evidence given by multiple witnesses as to movements of persons – Judge refused defence application to use animation in final address – Whether visual representation fairly reflected effect of evidence – Whether error of law – Power of judge to ensure jury not misled – Leave to appeal refused.

CRIMINAL LAW – Trial – Arraignment – Accused must be arraigned in presence of jury panel – Arraignment viewed by jury panel through video-link – Whether physical presence required – Whether fundamental defect – Whether miscarriage of justice – Leave to appeal refused – Criminal Procedure Act 2009 ss 210, 217, Juries Act 2000 pt 6.

WORDS AND PHRASES – ‘in the presence of’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Walker SC with Ms R Shann	Galbally & O’Bryan
For the Respondent	Mr C B Boyce QC with Mr M J Gibson QC and Ms A Ellis	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ
MAXWELL P

TABLE OF CONTENTS

Summary

Approaching the unreasonableness ground

The jury’s advantage

The Crown case

PART I: THE ASSESSMENT OF CREDIBILITY AND RELIABILITY

The story was false

Improbability

Impossibility

B’s denial

Cardinal Pell’s denials

The absence of Father Egan

PART II: THE EVIDENCE IN DETAIL

Fabrication and invention

The changes in A’s account

The ‘solid obstacles’ to conviction

A. The timing of the alleged assaults was impossible

B. It was not possible for Pell to be alone in the sacristies only a few minutes after the end of Mass

C. It was not possible for Pell to be robed and alone in the Priests’ Sacristy after Mass

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

E. It was not possible to leave a procession unnoticed

F. Would be seen by the organist (Mallinson or Cox) in the south transept

G. There were choir rehearsals on 15 and 22 December 1996

H. It was not possible to rejoin the choir unnoticed

I. It was not possible to part Pell’s robes

J. The second incident could not have happened in 1997 at a Mass said by another priest

K. The second incident could not have occurred unnoticed

L. Pell would not be alone among the choir

M. Pell would not have been in the corridor between the Priests’ Sacristy and the Archbishop’s Sacristy moments after Mass finished

PART III: OVERALL CONCLUSION

Annexure A……………………………………………………………………………………….. 322

FERGUSON CJ

MAXWELL P:

Summary

Late last year, Cardinal George Pell was convicted of five specific sexual offences alleged to have been committed on two occasions in the mid-1990s, when he was the Catholic Archbishop of Melbourne. (A previous trial on the same charges had ended when the jury were unable to reach a verdict.) Cardinal Pell’s position is that he should not have been convicted. That is what we must grapple with in this appeal.

Cardinal Pell’s conviction and this appeal have attracted widespread attention, both in Australia and beyond. He is a senior figure in the Catholic Church and is internationally well known. As the trial judge commented when sentencing Cardinal Pell, there has been vigorous and sometimes emotional criticism of the Cardinal and he has been publicly vilified in some sections of the community.[1] There has also been strong public support for the Cardinal by others. Indeed, it is fair to say that his case has divided the community.
[1]DPP v Pell [2019] VCC 260, [5] (‘Reasons’).

It is important to stress at the outset that Cardinal Pell’s conviction only concerns the five offences alleged to have been committed by him. Again, as the trial judge observed, he was ‘not to be made a scapegoat for any [perceived] failings … of the Catholic Church’ nor for any failure in relation to child sexual abuse by other clergy.[2] His conviction and sentence could not be a vindication of the trauma suffered by other victims of sexual abuse.[3]
[2]Ibid [10].
[3]Ibid [11].

The offences in respect of which Cardinal Pell was found guilty by a County Court jury were one charge of sexual penetration of a child under 16 and four charges of indecent act with a child under 16. The trial ran for five weeks. The jury deliberated for several days. Cardinal Pell was sentenced to 6 years’ imprisonment, with a non-parole period of 3 years and 8 months.

Cardinal Pell now seeks leave to appeal against conviction. There are three proposed grounds, the principal of which is that the guilty verdicts are ‘unreasonable and cannot be supported having regard to the evidence’[4] (‘the unreasonableness ground’). The other grounds concern aspects of the conduct of the trial.
[4]Criminal Procedure Act 2009 s 276(1)(a).

At the time of the alleged offending, Cardinal Pell was the Catholic Archbishop of Melbourne. The offences were alleged to have been committed on two occasions, in 1996–1997, against choirboys in the St Patrick’s Cathedral choir. The first occasion was said to have involved two boys, to whom we will refer as ‘A’ and ‘B’ respectively.[5] The second occasion involved A alone. The first incident was alleged to have taken place in the Priests’ Sacristy at St Patrick’s. The second incident was alleged to have taken place in the corridor outside the Archbishop’s and Priests’ Sacristies at the Cathedral. On the next page is a plan of the Cathedral.

[5]To ensure that there is no possibility of identification of the complainant and the other boy, this judgment has been anonymised by the adoption of pseudonyms.

The prosecution case rested on the evidence given by A. By the time A first made a complaint to police, in June 2015, B had died from accidental causes. In 2001, when asked by his mother whether he had ever been ‘interfered with or touched up’ while in the Cathedral choir, B said that he had not.

As will appear, the prosecution also called evidence from a number of witnesses who held official positions at the Cathedral, or were members of the choir, during the relevant period. As the judge told the jury in his summing-up, their evidence as to processes and practices at the Cathedral at the relevant time went to the issue of whether there was ‘a realistic opportunity’ for the offending to have taken place. (Like the trial judge, we will refer to this evidence as the ‘opportunity evidence’.)

Included among these witnesses were:

·Charles Portelli — the Master of Ceremonies to Cardinal Pell;
·Daniel McGlone — altar server;
·Jeffrey Connor — altar server;
·Maxwell Potter — the sacristan;
·Peter Finnigan — the choir marshal;
·John Mallinson — organist and choirmaster; and
·Geoffrey Cox — assistant organist and choirmaster.[6]

[6]A list of all the witnesses referred to in these reasons is attached.

The defence called no evidence at the trial. Earlier, Cardinal Pell had participated voluntarily in a record of interview with police. The jury were shown a recording of that interview, in which Cardinal Pell strongly denied the allegations.

The prosecution case was that A was a witness of truth, on the basis of whose evidence the jury could be satisfied beyond reasonable doubt that the events he described had occurred. The defence case was that A’s account was a fabrication or a fantasy and that, in any event, the evidence of the opportunity witnesses, taken as a whole, combined to render A’s account ‘either literally impossible, or so unlikely it’s of no realistic possibility’.

Where the unreasonableness ground — often referred to as the ‘unsafe and unsatisfactory’ ground[7] — is raised, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question, the High Court has said, the appeal court

must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.[8]

[7]SKA v The Queen (2011) 243 CLR 400, 405 [12] (French CJ, Gummow and Kiefel JJ) (‘SKA’).

[8]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law — for example, by admitting certain evidence or in giving (or failing to give) the jury a particular direction of law — no discrete question of law arises.[9] Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it was reasonably open to the jury to convict the accused.
[9]We note that, for the purposes of judicial review, the question whether a finding of fact was reasonably open on the evidence before the decision-maker is conventionally characterised as a question of law: S v Crimes Compensation Tribunal [1998] 1 VR 83, 89–91.

Having reviewed the whole of the evidence, we would answer that question affirmatively. In our view, it was open to the jury to be satisfied beyond reasonable doubt that Cardinal Pell was guilty of the offences charged. That is, there was nothing about A’s evidence, or about the opportunity evidence, which meant that the jury ‘must have had a doubt’ about the truth of A’s account. It is not enough, as the authorities make clear, that one or more jurors ‘might have had a doubt’.[10]
[10]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).

These reasons will first address what senior counsel for Cardinal Pell described as the appropriate ‘judicial method’ for dealing with the unreasonableness ground. We then deal with the critical question of A’s credibility and reliability. As will appear, the submission for Cardinal Pell was that the jury ‘must have had a doubt’ about A’s account, the content of which was variously said to be false, improbable and impossible. Finally on this ground, we deal with the aspects of the evidence said to constitute ‘solid obstacles in the path of a conviction’.

Ground 2 concerns a ruling by the judge which prevented the defence presenting to the jury what was said to be a ‘moving visual representation of its impossibility argument’. Ground 3 concerns whether the jury panel was present when the arraignment took place. For the reasons given by Weinberg JA, whose judgment we have had the advantage of reading in draft, we would refuse leave to appeal on both grounds. Accordingly, although we would grant leave to appeal on the unreasonableness ground, we would dismiss the appeal.

It should be noted that there is no ground of appeal challenging any aspect of the judge’s charge to the jury. As the parties acknowledged during the hearing, his Honour’s charge was exemplary. Like his conduct of the entire trial, it was clear, balanced and scrupulously fair.

Approaching the unreasonableness ground

The legislature has specified that an appeal against conviction must be allowed ‘if the appellant satisfies the court that the … verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.[11] The words of the statute define the test which faces Cardinal Pell and dictate what this Court must do. If we are satisfied that the convictions were ‘unreasonable or cannot be supported having regard to the evidence’, then we ‘must allow the appeal’.[12]
[11]Criminal Procedure Act 2009 s 276(1)(a).
[12]Ibid.

The approach which an appellate court must take when addressing the unreasonableness ground was defined, authoritatively, by the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (‘M’).[13] Their Honours said that the appeal court must ask itself

whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[14]

[13](1994) 181 CLR 487. The relevant statutory provision was not in identical terms to s 276(1)(a) Criminal Procedure Act 2009 but used the same terminology. In that case, s 6(1) of the Criminal Appeal Act 1912 (NSW) provided, so far as relevant, that the court must allow an appeal against conviction if the court is ‘of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence’. See also Jones v The Queen (1997) 191 CLR 439, 452 (Gaudron, McHugh and Gummow JJ); MFA v The Queen (2002) 213 CLR 606, 614–15 [25] (Gleeson CJ, Hayne and Callinan JJ), 623 [57] (McHugh, Gummow and Kirby JJ).

[14]M (1994) 181 CLR 487, 493.

Importantly, the Court in M went on to say:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.[15]

[15]Ibid 494.

Subsequently, in Libke v The Queen (‘Libke’),[16] Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in terms which emphasise the high hurdle which an appellant must overcome:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[17]

[16](2007) 230 CLR 559.

[17]Ibid 596–7 [113] (emphasis in original) (citations omitted).

This seminal statement echoed language used by other members of the High Court, both in M and previously. Thus, in Chidiac v The Queen (‘Chidiac’),[18] Dawson J had said:

If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory …[19]

In M, Brennan J expressed agreement with this formulation,[20] and McHugh J said that the correct test was:
whether a reasonable jury must have had a reasonable doubt about the accused’s guilt.[21]

[18](1991) 171 CLR 432.

[19]Ibid 451–2 (emphasis added).

[20](1994) 181 CLR 487, 501–2.

[21]Ibid 525. See also MFA (2002) 213 CLR 606, 622–3 [53]–[54] (McHugh, Gummow and Kirby JJ).

In R v Klamo (‘Klamo’),[22] Maxwell P (with whom Vincent and Neave JJA agreed) summarised the approach required by M and Libke and said:
[22](2008) 18 VR 644.

In other words, the question posed in M v R, namely:
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?

requires the court of criminal appeal to decide:
whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’ or whether, instead, the ‘path to a conviction was open’.[23]

[23]Ibid 653–4 [40] (citations omitted).

Senior counsel for Cardinal Pell accepted that the relevant formulations were effectively interchangeable. That is, to say that the jury ‘must have had a doubt’ was simply a different way of saying that it was ‘not reasonably open’ to the jury to conclude beyond reasonable doubt that the offences had been committed. Counsel submitted that the ‘not reasonably open’ formulation was to be preferred, since it had ‘the huge advantage of repeating the word in the statute’.[24] Consistently with the authorities, the written case for Cardinal Pell accepted — and invoked — the ‘solid obstacle’ metaphor from Klamo.
[24]See MFA (2002) 213 CLR 606, 624 [60]–[61] (McHugh, Gummow and Kirby JJ).

As already noted, the submission for Cardinal Pell was that, on the whole of the evidence, we as appellate judges should have a reasonable doubt about whether the offences were committed. Following the M approach, it was said, we should then take what was referred to in argument as ‘the second step’. That is, we should ask ourselves whether the jury’s ‘advantage in seeing and hearing the evidence’ was capable of resolving that doubt. The submission for Cardinal Pell was that, whatever the jury’s advantage might have been, it could not dispel the doubts which would necessarily be engendered by our review of the evidence.

This concept of the jury’s ‘advantage’ warrants further examination. As already noted, that advantage must be considered by the appeal court if it becomes necessary to take the ‘second step’, that is, if there is a ‘doubt experienced by [the] appellate court’.[25] More generally, the concept invites attention to the differences in character and function between the appellate court and the jury. The High Court has said repeatedly that the jury is ‘the constitutional tribunal for deciding issues of fact’ and that, accordingly, the setting aside of a jury’s verdict on the unreasonableness ground is a serious step.[26] It is appropriate, therefore, to address this issue at the outset.
[25]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
[26]MFA (2002) 213 CLR 606, 621 [49]; R v Baden-Clay (2016) 258 CLR 308 — see [29] below.

The jury’s advantage

Traditionally, of course, the jury in a criminal trial had what McHugh J in M described as the ‘incomparable advantage’ of seeing and hearing the witnesses for themselves.[27] By contrast, the appeal court had recourse only to the transcript of the evidence. Thus, in Whitehorn v The Queen (‘Whitehorn’),[28] Dawson J said:

In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness’s evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot.[29]

[27]M (1994) 181 CLR 487, 517.

[28](1983) 152 CLR 657.

[29]Ibid 687.

Subsequently, in Chidiac,[30] Mason CJ said:

The constitutional responsibility of the jury to decide upon the verdict and the advantage which the jury enjoys in deciding questions of credibility by virtue of seeing and hearing the witnesses impose some restraints upon the exercise of an appellate court’s power to pronounce that a verdict is unsafe.[31]

[30](1991) 171 CLR 432.

[31]Ibid 443.

More recently, in R v Baden-Clay (‘Baden-Clay’),[32] a unanimous High Court said:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by a jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[33]

[32](2016) 258 CLR 308.

[33]Ibid 329 [65] (citations omitted) (French CJ, Kiefel, Bell, Keane and Gordon JJ).

In recent years, however, the gap between the position of the jury and that of the appeal court has narrowed in important respects. Reforms to the procedure for the trial of sexual offences have led to the pre-recording of a complainant’s examination in chief and — in the case of child complainants — of the ‘special hearing’ at which the complainant is cross-examined in the presence of a judge.[34] Pre-recording has the singular advantage that, in the event that a trial is aborted or a successful appeal results in a retrial, the complainant is not required to give evidence a second time.
[34]Criminal Procedure Act 2009 pt 8.2, divs 6–7.

Pre-recording also means that, in an appeal against conviction in such a case, the appeal court can view for itself the video recording of the complainant’s evidence. In this case, both A’s examination in chief and the cross-examination by counsel for Cardinal Pell were recorded. The examination in chief was pre-recorded, and the cross-examination was recorded as it took place in front of the jury at the first trial. When the first trial resulted in a hung jury, the recorded evidence was able to be played at the second trial.

Given the centrality of A’s evidence, this Court proposed to the parties in advance of the appeal hearing that each member of the appeal bench should view the video recording in advance. The defence’s primary submission was that we should not watch any of the evidence. Their secondary submission, in the event that we disagreed, was that in addition to A’s evidence the Court should view the video recording of the evidence given by a number of the opportunity witnesses, as nominated by the defence.[35] It was pointed out, correctly, that this would avoid the risk of imbalance identified in SKA.[36] We have proceeded on that basis.
[35]As is now customary, the entire trial was recorded. The defence nominated the following witnesses: Charles Portelli, Maxwell Potter, Daniel McGlone, Jeffrey Connor, Peter Finnigan, Geoffrey Cox, John Mallinson, Rodney Dearing, David Dearing, Luciano Parissi, Robert Bonomy.
[36](2011) 243 CLR 400, 410 [28]–[29] (French CJ, Gummow and Kiefel JJ).

Indeed, we have approached our task by trying to put ourselves in the closest possible position to that of the jury. We have done so by reading the transcript (which runs to approximately 2000 pages), watching some of the oral evidence and attending a view of the Cathedral. For the same reason, we have refrained from looking at material that was not before the jury but was available to us. Jurors are told that they must decide the case on the basis of the evidence before them. They do not know about evidence that has been excluded, nor do they even know that an application for exclusion of particular evidence has been made. We have not sought to search for material or reasons connected with any such application.

For the same reason, we have not read A’s two police statements. They were referred to in his cross-examination but were not in evidence before the jury. On the other hand, we have each read the judge’s reasons for granting leave to the prosecution to cross-examine some of the witnesses.[37] We also read the respective written cases and listened to the oral submissions of the parties on the appeal. Inevitably, matters were put to us with some slight differences in emphasis from the way they were put in closing submissions at the trial.
[37]See [152]–[154] below.

In those circumstances, what remains of the jury’s ‘incomparable advantage’? This Court does not, of course, ‘perform its function within the atmosphere of the particular trial’.[38] And there are other important differences which are likewise unaffected by the appellate court’s ability to view recorded evidence and participate in a view. The first is that jurors hear the witnesses in an unbroken sequence and are able to undertake continuous evaluation of the evidence — both individually and collectively — as the case progresses.[39] The review of evidence by appellate judges is, by contrast, both fragmented and elongated and, for the most part, done individually.[40]
[38]Whitehorn (1983) 152 CLR 657, 687 (Dawson J).
[39]In a civil context, see Fox v Percy (2003) 214 CLR 118, 126 [23] (Gleeson CJ, Gummow and Kirby JJ), and the cases there cited.
[40]See Glover v The Queen [2015] NSWCCA 285, [104] (McCallum J).

The second difference is that the experience of viewing oral evidence in a courtroom is superior to the two-dimensional view of a witness seen on a video recording. While we were in the same position as the jury in relation to A’s evidence and other recorded evidence, the jury had the advantage of seeing and hearing, at close quarters, almost all of the opportunity witnesses.[41]
[41]Apart from A’s evidence, the only recorded evidence viewed by the jury was the evidence of six choristers and a wine maker.

The third difference is that of collective deliberation. Each juror engages with 11 others whose only common attribute is that each has been present for the entirety of the evidence, the final addresses and the judge’s charge. Related to this is the effect of the requirement for unanimity (or a very high majority).[42] As Heydon J said in AK v Western Australia:

It cannot be easy to obtain unanimity or a high majority amongst quite a large number of decision-makers reflecting the diversity of the sections of the community they belong to, the diversity of human personality and the diversity of human experience. The process must tend to generate its own discipline — cause a careful scrutiny of the evidence, a dilution and sloughing away of individual prejudices, a pooling and sharing of human experience, a solemnity of decision-making.[43]

[42]See Juries Act2000 s 46.

[43](2008) 232 CLR 438, 477–8 [103].

In contrast, appellate judges do not have to agree with one another. They form their views independently of each other and without the benefit of the processes that a jury has for joint decision-making. Judges give written reasons for their decisions. A jury does not. In our experience, independent decision-making supported by a process of detailed writing is different from collective decision-making. In many respects, the independence of each judge is the antithesis of the jury’s collective responsibility.[44]
[44]The notion of collective responsibility is not inconsistent with the duty of each juror to determine guilt or innocence on the evidence led at the trial: Papazoglou v The Queen (2015) 45 VR 457, 505–10.

It is not necessary for the purposes of disposing of this appeal to elaborate on the significance of these differences. (For the reasons set out below, we do not ‘experience a doubt’ about the truth of A’s account or the Cardinal’s guilt, and hence have not found it necessary to take ‘the second step’.) But it can be said with confidence that no advance in technology can ever replicate the unique features of jury deliberation and decision-making. Even if consideration of the unreasonableness ground necessitated sitting through a video replay of the entire trial, those features mean that an appeal court can never be in as good a position as the jury.

In Baden-Clay, after affirming the ‘abiding importance’ of jury trials in the administration of criminal justice, the High Court said:

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury.[45]

Recognising and respecting the differences we have identified should help to ensure that no such substitution occurs.

[45]Baden-Clay (2016) 258 CLR 308, 330 [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

Finally, we would respectfully adopt what was said by McHugh, Gummow and Kirby JJ in MFA v The Queen (‘MFA’), as follows:

A jury is taken to be a kind of microcosm of the community. A ‘verdict of [a] jury’, particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality.[46]
[46](2002) 213 CLR 606, 621 [48]. See also R v BJB [2005] NSWCCA 441, [34] (Rothman J).

The Crown case

This section of the reasons repeats the summary of the Crown case as set out in the appeal documents. The summary should be understood as representing the prosecution’s version of the relevant events. It provides essential context for the analysis which follows.

The first incident (Charges 1–4): The prosecution case was that after Sunday solemn Mass in the latter part of 1996, Cardinal Pell committed a number of sexual offences against two choristers who were then 13 years old. The prosecution relied upon the evidence of A,[47] namely, that he and his friend B had detached themselves from the choir during its procession out of the Cathedral. A said that they re-entered the Cathedral via the south transept. The two then made their way along the sacristy corridor. They entered the Priests’ Sacristy, an area which was off-limits to choristers. A had no recollection of ever being in this room before. Evidence was given by Charles Portelli that, during the latter part of 1996, the Priests’ Sacristy was being used by the Archbishop for robing and disrobing due to the unavailability of the Archbishop’s Sacristy.
[47]It may not be entirely correct to say that A’s evidence was uncorroborated. To an extent his evidence was supported by reference to knowledge that he possessed which he could not have come by unless he was telling the truth. In any event, there is nothing particularly unusual in a jury convicting an accused on the strength of a so-called ‘uncorroborated’ complainant. A finding of guilt in such circumstances does not give rise, in and of itself, to a conviction being unsafe or unsatisfactory.

Once inside the Priests’ Sacristy, A and B made their way to an alcove in the corner (described as a wood-panelled area resembling a storage kitchenette with cupboards) which was a little bit concealed. There they located some sacramental wine. This was from the panelled area in the cupboards. They began ‘swigging’ the wine. They had barely opened the bottle and taken a couple of swigs when Cardinal Pell entered the room alone. He was wearing robes. Cardinal Pell planted himself in the doorway and said something like ‘What are you doing in here?’ or ‘You’re in trouble’. The boys froze and then Cardinal Pell undid his trousers or his belt. He started moving underneath his robes.

B was saying ‘Can you let us go? We didn’t do anything’. After pulling B aside, Cardinal Pell pulled out his penis and grabbed B’s head. A could see B’s head being lowered towards Cardinal Pell’s genitalia. B started squirming. He was struggling. A could see Cardinal Pell’s hands around the back of B’s head. B was crouched before Cardinal Pell and his legs were flailing around a bit. B’s head was being controlled and it was down near Cardinal Pell’s genitals. A heard some whimpering and heard B’s discomfort. He saw that B’s face looked terrified. This took place for barely a minute or two (Charge 1).

Then Cardinal Pell turned to A and pushed his penis into A’s mouth. A was pushed down and crouching or kneeling closer to the corner of the room where the cupboards were. Cardinal Pell was standing. His penis was erect. A was ‘freaking out’. This happened for a short period of time. It would not have been any more than two minutes (Charge 2).

Cardinal Pell then instructed A to undo his pants and to take them off. A dropped his pants and underwear. Cardinal Pell started touching A’s penis and testicles with his hands (Charge 3). As he did this, Cardinal Pell was using his other hand to touch his own penis (Charge 4). Cardinal Pell was sort of crouched, almost on a knee. These two instances of touching took a minute or two.

The two boys made some objections but did not quite yell. They were sobbing, in shock, and whimpering. During the offending, Cardinal Pell told them to be quiet, trying to stop them from crying.

After Cardinal Pell had stopped, A gathered himself and his clothing. He and B exited the Cathedral the same way as they had entered, via the sacristy corridor to the south transept. They entered the choir room very quickly after what had happened and rejoined some of the choir who were mingling around and finishing up for the day. The two then left the Cathedral precinct. A did not complain to anyone, including his parents on the ride home or at any time after. Nor did he ever discuss the offending with B.

The second incident (Charge 5): At least a month after the first incident, again following a Sunday solemn Mass at St Patrick’s Cathedral, A was processing with the choir back through the sacristy corridor towards the choir room. As A was walking between the entry to the Priests’ Sacristy and the Archbishop’s Sacristy, Cardinal Pell pushed himself up against A on a wall and squeezed A’s testicles and penis over his robes. Cardinal Pell was robed at the time. He did not say anything. A did not tell B about the second incident.

A made a complaint to police in June 2015. B died in 2014, having never made any complaint to police. When asked by his mother in 2001, at age 17 or 18, whether he had ever been ‘interfered with or touched up’ when he was in the choir, B said ‘No’.

The prosecution called 23 other witnesses at trial. Most of these witnesses were involved or associated with Sunday solemn Mass at St Patrick’s Cathedral during the relevant period. As mentioned earlier, most of these witnesses gave evidence as to the general or normal procedure followed at Sunday solemn Mass in late 1996 and early 1997 and, in particular, as to the movements of the choir and of those involved in the Mass. We discuss their evidence in detail below.

PART I: THE ASSESSMENT OF CREDIBILITY AND RELIABILITY

The critical issue in this trial was whether A’s evidence was credible and reliable. As the judge told the jury in his charge:

In order to convict you must be satisfied beyond reasonable doubt that [A’s] account is true. That is, that the offences, as described by him, actually happened.

To assist the jury in assessing the evidence, his Honour explained the difference between credibility and reliability:
Broadly speaking, credibility concerns honesty; is the witness telling the truth; and reliability is different. The witness may be honest, but have a poor memory, or indeed be mistaken. So there are those two aspects to a witness’ evidence, and I am sure that corresponds with your day-to-day experience in life in judging people.

Ordinarily, one person’s assessment of the credibility of another person is an intuitive judgment, made without reflection or analysis. In a criminal trial, however, the jury will very often be asked to be both reflective and analytical in their assessment of a witness’s credibility, especially when the witness’s evidence is — as it was here — critically important.

So it was in the present trial in relation to A’s evidence. The prosecutor invited the jury to reflect and to analyse. First, he submitted, they should

step back for a moment and simply think about the overall impression that you were left with by [A’s] evidence when it finished …

And then:
What was the overall impression you were left with? Did he strike you as being an honest witness? An accurate historian? Was he being frank with you in his evidence? Did he appear to be recounting actual events and actual experiences that he’d had? …
Next, did he have the sort of memory blanks you would expect a person to have about unimportant details or peripheral matters, the sorts of things you’d expect a person not to recall with clarity, given the passage of time and given their lack of significance to the actual event itself. The sort of things you’d have a query about, you’d have reservations about if indeed he did remember.
Alternatively, ask yourselves did he come across as a dishonest witness? A person who is gilding the lily, a person who was embellishing things at every opportunity that he had; making things up, exaggerating things, plugging holes when he could, putting a positive spin on things and recounting peripheral matters when you wouldn’t expect a person to be able to do that?

In his book, Evidence, Proof and Probability,[48] Sir Richard Eggleston identified a number of considerations which a judge will typically take into account in the assessment of a witness’s credibility.[49] As jurors are typically asked to take into account similar considerations, Sir Richard’s list provides a helpful framework within which to review the parties’ submissions about A’s credibility. The relevant passage was as follows:
[48]Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2^nd ed, 1983).
[49]Ibid 192–3.

What are the factors that a judge takes into account when deciding whether a witness is telling the truth? They may be listed as follows:
1)The inherent consistency of the story: if the evidence of the witness contains internal contradictions, it cannot be accepted as a whole. The question may be which part to reject.
2)Consistency with other witnesses: this, of course, involves making an assessment also of the other witnesses, which in turn requires consideration of the factors here set out in relation to those witnesses also.
3)Consistency with undisputed facts: these include documentary evidence (if not subject to attack), facts admitted by the parties, or matters of common knowledge or experience.
4)The ‘credit’ of the witness: in addition to the observation of his performance in the witness-box, this will include … evidence of bias against a party; or evidence of a general reputation for mendacity.
5)Observation of the witness: this includes physical manifestations of truthfulness or mendacity, or of uncertainty, and also characteristics observable in the witness-box or capable of being tested there (hearing and eyesight, capacity to judge distance or height) …
6)The inherent probability or improbability of the story.[50]

[50]Ibid.

We note that ‘observation of the witness’ is but one of the factors listed here, and it appears well down the list. Appropriately, the judge in the present case instructed the jury that there were ‘just too many variables to make the manner in which a witness gives evidence the only, or even the most important, factor’. In our consideration of the evidence we have likewise borne in mind the caution sounded by the High Court in Fox v Percy about ‘the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses’.[51] As far as possible, the Court said, conclusions should be arrived at

on the basis of contemporary materials, objectively established facts and the apparent logic of events.[52]

[51](2003) 214 CLR 118, 129 [30] (Gleeson CJ, Gummow and Kirby JJ).

[52]Ibid 129 [31].

In the present case, the Crown has consistently maintained that the jury were entitled to accept A as a credible and reliable witness. The defence, on the other hand, has consistently maintained that he could not be believed. On appeal, the contention for Cardinal Pell was that the jury could not have been satisfied beyond reasonable doubt that A’s account was true.

In support of their respective contentions, both sides rely on considerations of the kind identified by Sir Richard Eggleston. Thus, the Crown points to aspects of A’s account of the first incident as being consistent with undisputed facts about the layout and furnishing of the Priests’ Sacristy at the relevant time. A’s knowledge of such details is said to confirm the truth of his statement that he was there when the alleged offending took place. Reliance is also placed on what could be gathered from ‘observation of the witness’. More than once, senior counsel for the Crown in this Court submitted that A was a ‘compelling’ witness.

The defence, for its part, contends that the record of the trial reveals:

·inconsistencies between A’s evidence and the evidence of the opportunity witnesses;
·inconsistencies between his evidence and what are said to be undisputed facts;
·that A consciously altered his evidence when challenged, thus demonstrating his untruthfulness; and
·the inherent improbability of A’s story.

The defence attack on A’s credibility and reliability comprised three distinct strands. The first was that A’s account was simply false. Either he was a liar, who had modified his fabricated story ‘when faced with impossibilities and difficulties’, or he was recounting a fantasy which he had, over time, come to believe was true. According to the appeal submission:

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

The second strand was that of inherent improbability. A’s claims were ‘so implausible that a reasonable jury must have had a reasonable doubt’. According to the appeal submission:

[A] claimed in the first incident that Pell had engaged in visually unambiguous sexual acts, immediately after a solemn Mass, in a room that he must have expected those involved in the ceremony to enter as those acts were occurring, having left open a door to a well-traversed corridor, without making any suggestions of secrecy despite the considerable noise that [A] claimed he and [B] made during the alleged abuse, and in spite of private lockable rooms being available to Pell only a short distance away. And in the second incident, [A] claimed that 6 foot 4 inches Pell, fully robed, pushed his way, somehow, through a procession and then violently sexually assaulted [A], completely unperturbed by having a corridor of choristers as eye witnesses to his sexual offending.

Thirdly — and this was the contention most prominently advanced both at trial and on appeal — it was factually impossible for the offending to have occurred as alleged. According to the appeal submission:

No matter what view was taken of [A] as a witness, it was simply not open to the jury to accept his word beyond reasonable doubt. That is so because: (i) the combined evidence of the witnesses, with the sole exception of [A], if accepted, showed that the offending was impossible; and (ii) there was no rational reason to reject this evidence.[53]

[53]Emphasis added.

Before the jury and again in this Court, each of these contentions was supported by detailed reference to the evidence given by A and by the opportunity witnesses. In pt II of this judgment, we review that evidence and the competing appeal submissions. Before doing so, it is appropriate that we express our general conclusions on the effect of the evidence. Although the contentions of falsity, improbability and impossibility were all directed at undermining A’s credibility and reliability, it is convenient to deal with each contention separately.

The story was false

The defence in a criminal trial bears no onus at all. As a matter of forensic reality, however, a defendant faced with accusations from an apparently credible complainant will usually look to put before the jury reasons why the complainant’s account should be doubted. Identification of a motive to lie may suggest such a reason. As the High Court said in Palmer v The Queen (‘Palmer’):

Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations.[54]

In the same case, McHugh J said:[55]
When a serious allegation is made against a person, one of the first inquiries most persons make in testing the truth of the allegation is to ask whether the person making the allegation has any motive for fabricating it. Any facts that suggest a motive are regarded as throwing light on the probability of the allegation being untrue.

[54](1998) 193 CLR 1, 6 (Brennan CJ, Gaudron and Gummow JJ).

[55]Ibid 24–5 [58].

In our experience, it is common in sexual assault trials for it to be put to the complainant in cross-examination that they had a reason to invent the allegations.[56] For example, where the alleged perpetrator was at the relevant time in a relationship with the complainant’s mother, it may be suggested by the defence that the complainant fabricated the allegations in order to break up the relationship.[57]
[56]See, eg, TP (a pseudonym) v The Queen [2012] VSCA 166, [28]–[30] (Warren CJ, Redlich and Hansen JJA); Woods (a pseudonym) v The Queen [2014] VSCA 233, [24] (Hansen JA).
[57]See, eg, FG (a pseudonym) v The Queen [2012] VSCA 84, [14] (Bongiorno JA); Mathis (a pseudonym) v The Queen [2014] VSCA 118, [5] (Maxwell ACJ).

These realities are anticipated in the Evidence Act 2008 (‘Evidence Act’), which makes admissible (as an exception to the credibility rule) evidence which ‘tends to prove that the witness … is biased or has a motive for being untruthful’.[58] Provision is also made for the introduction of evidence of a prior consistent statement, if it is suggested that ‘evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise)’.[59]
[58]Evidence Act s 106(2)(a).
[59]Ibid s 108(3)(b).

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

The second, and rather different, line of attack was that A’s account was all a fantasy, a product of his imagination. For example, defence counsel suggested to A that his account of the second incident was ‘the product of fantasy. Total fantasy’. In final address, counsel submitted that A’s evidence was ‘a product of fantasy which he might have come to believe after so many years because people who fantasise sometimes come to believe their fantasies’.

‘Imagined’ is quite different from ‘invented’, as counsel for Cardinal Pell accepted in this Court. The defence were, of course, entitled to advance fabrication and fantasy as alternative hypotheses. But what the hallmarks of fantasy might be was never explained to the jury, or to this Court. Nor was any motive identified which might have explained what were said to be A’s deliberate fabrications.

As we have emphasised — and as the judge correctly instructed the jury — there was no obligation on the defence to suggest such a motive. But, in the absence of any such suggestion, the jury were left with the bald assertion of fabrication. As the High Court said in Palmer, proof of a motive to lie weakens a complainant’s credibility.[60] Here, the absence of any defence hypothesis about why A might have invented these allegations meant that his credibility was not damaged on that account.
[60](1998) 193 CLR 1, 9 [9] (Brennan CJ, Gaudron and Gummow JJ).

In advancing the fabrication hypothesis, senior counsel for Cardinal Pell repeatedly put to A in cross-examination at trial that he had realised, after being cross-examined at committal, that there were difficulties in his story which he would have to fix up. It was for this reason, counsel suggested, that A had ‘concocted’ or ‘invented’ new pieces of evidence. We examine a number of these alleged concoctions below.[61]
[61]See [197]–[231] below.

It is sufficient for present purposes to say that we saw nothing in A’s answers under cross-examination to suggest that he had been caught out or had tripped himself up. And, where his responses involved any alteration of — or addition to — what he had said previously, the changes seemed to us to be typical of what occurs when a person is questioned on successive occasions, by different people, about events from the distant past.

Recollection can be revived by all sorts of stimuli, the most obvious being repeated requests by different people to recall particular events. A had provided two statements to police and, by the time of this trial, had been cross-examined at length twice, first at the committal and again at the first trial. His recollection was also prompted by a ‘walkthrough’ at the Cathedral, undertaken in 2016 for the purpose of showing police where the incidents had taken place.[62] This was the first time A had been back in the Cathedral since he was 13 years old and — as he told the jury — it made him realise that a plan he had drawn earlier for police was mistaken.
[62]A video recording of the walkthrough was before the jury, and we have viewed it ourselves.

The jury were well equipped to decide whether any changes in A’s account over time revealed him to be dishonest or, alternatively, unreliable. As McHugh J said in M:

It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness’s evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital — such as the account of a conversation in a fraud case or the description of a person where identity is the issue — discrepancies and inconsistencies in the witness’s account may make it impossible to accept that person’s evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.[63]

[63](1994) 181 CLR 487, 534.

In his charge, the judge noted the defence argument that changes and inconsistencies in A’s evidence undermined his credibility. He directed the jury that they needed to decide for themselves whether such inconsistencies were important to their assessment of his credibility. To assist their consideration, his Honour gave the jury a direction in the form provided for by s 54D(2)(c) of the Jury Directions Act 2015 (‘JDA’), as follows:

When you are assessing the evidence, also bear in mind that experience shows the following. One, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Two, trauma may affect different people differently, including by affecting how they recall events. Three, it is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts. And finally, both truthful and untruthful accounts of a sexual offence may contain differences.

A further indication of A’s credibility, in our view, was his admitted uncertainty about a number of matters which, if the story had been invented or was an entrenched fantasy, he might have been expected to describe with confidence. Striking examples of this were:

·his uncertainty about whether Cardinal Pell closed the door in the first incident;
·his lack of recall as to whether he had screamed or called out during the first incident; and
·his uncertainty about which hand Cardinal Pell had used in the second incident.

In testing the fabrication hypothesis, it is relevant that there were features of A’s account which — had he been fabricating — he might have been expected to construct differently. For example, it might be thought surprising that — on A’s account — Cardinal Pell did not close the door after entering the Priests’ Sacristy. But, as already noted, A said he could not recall whether it was closed or not. He thought it was not ‘wide open’. In our view, the jury could properly reason that a person fabricating a story would have been more likely to say that the door was closed, precisely in order to remove the potential difficulty of explaining how it was that noises made inside were not heard outside.

To similar effect was A’s evidence that Cardinal Pell had not ordered the boys to keep quiet about the first incident. This might also be thought to be somewhat surprising. A juror might well have assumed that, if such conduct had occurred, the perpetrator would have been likely to threaten the victims into silence. In final address, senior counsel for Cardinal Pell submitted that, if it were a true story, Cardinal Pell would have taken the boys to his office and locked the door. Afterwards, it was submitted, he would have said to them, ‘Don’t you dare tell anyone else because God will strike you dead’.

In our view, the jury were also entitled to view this aspect of A’s account as supportive, rather than destructive, of his credibility. The fact that his account of the incident did not include the making of any such threat tended against the contention that he had made it up.

The failure to complain

Defence counsel cross-examined A at length about his failure to say anything to anyone about the alleged assaults until many years later. It was put to A — as it was later put to the jury — that his silence was ‘proof that it didn’t happen’. Counsel laid particular emphasis on the fact that A had never spoken to B about either incident. The submission to the jury was that ‘if what happened really happened they would have discussed it.’

In cross-examination, defence counsel put to A that:

It would have been inevitable that one or other of you would’ve asked the other the next day, or even during the next week, ‘Have you told anyone?’ or, ‘What are we going to do about it, if anything?’.

And again:
if it happened, either you or [B] would have asked each other, ‘What are we going to do?’, wouldn’t you?

A responded as follows:

No, I think you’re assuming so much about us. I think you’re assuming that we were um across, across timelines and historical dates and also across the gravity of such an incident. We were — we were young kids. We were just trying to get by and we had no, no — we didn’t want to rock any boats. It’s the last thing we wanted to do. … We were nursing, we were carrying forward a lot of hopes and dreams of our working-class families and it meant so much to us to maintain and preserve what we had and the fact that that happened and, and didn’t happen so quickly, it started and finished such a quick, quick amount of time and that we went back resuming life and not much really infiltrated us after that. So we continued trying to live our lives as we were before. … I mean, how is that unreasonable? How is that unreasonable to try and, and explain that to you? How can you think that we were so pragmatic and tactical about everything that we would be discussing the nature of — of going forward or — why would I ask [B] why his mother, ah, was or wasn’t informed when I didn’t even want to think about it myself?

As counsel continued to press him, A gave extended explanations for his long silence. His answers combined two different themes. The first was that what had occurred was something he could not comprehend. ‘We couldn’t fathom what had happened to us’. It was so completely out of his ordinary experience, and so terrifying, he said, that:

part of the way I dealt with it was not to speak to anyone about it and to completely push it into the darkest corners and recesses of my brain.

A said at one point:
it was completely an anomaly … out of stream … Completely against the grain of how we were living our lives … it came into our lives and it exited just as quickly.

The second theme was that he was anxious to do nothing to jeopardise his future at the school, on which the hopes of many in his family rested. A was asked whether it had occurred to him that he should warn B, after the second incident, that there might be ‘a continuing interest in him’. A said it had not and, when asked to explain, he said:

Because the incidents were isolated, where they were compartmentalised and they were pushed away from my normality. They were absolutely isolated and ripped out of my mainframe which was - which was heading towards trying to be a young academic, you know, kid in a rich school trying to survive and trying to get through and trying to impress everyone in my family and trying to — to do something that — that I had the — I hadn’t done before, you know. That meant a lot to me. That meant a lot to me. And the fact that — that that was jeopardised, and the fact that - and it didn’t matter what jeopardised it. I could not bear the fact of — of letting down everyone in my life. Everyone around me had a lot of hopes in me on attending St Kevin’s [College], you know. That was the main drive. I wanted to stay at St Kevin’s. I wanted to be a part of that school, and I wanted to succeed in a rich private school environment. And I wanted that with my own head.

These responses seemed to us to be entirely plausible, as did A’s statement that he had ‘no intention of telling anyone, ever’. There was, in our view, no reason to doubt that A was ‘horrified … terrified’ by what had happened and, hence, would have buried the memories. Nor that he had done so because he knew he would never speak to anyone about it. It was perfectly understandable for him to have ruled out that possibility. He had been caught red-handed, in a prohibited place, and anything he said about Cardinal Pell was almost certain to be disbelieved. What followed in his evidence also had the ring of truth:

It’s something I’ve carried for the whole of my life, … and coming forward took a — took a courage much later on for me to be able to even think about coming forward.

On the appeal, senior counsel for the Crown singled out these passages as demonstrating why A should be viewed as ‘a very compelling witness’. Both the content of the answers, and the manner of their delivery, were said to be such as to eliminate any doubt a juror might have had. In our view, this was a very significant part of A’s evidence. It was rightly characterised as compelling, both because of the clarity and cogency of what A said and because of the complete absence of any indication of contrivance in the emotion which A conveyed when giving his answers.

As has often been recognised, delay in complaint is not uncommon in cases such as this. In R v BJB,[64] for example, McClellan CJ said:

In circumstances where children are the alleged victims of sexually inappropriate conduct, the combination of the disempowerment of the child and the authority figure of the perpetrator, together with the social pressures associated with causing conflict with the family or generally airing that which is in the past often leads to the suppression of these complaints until an older age.[65]

[64][2005] NSWCCA 441.

[65]Ibid [37].

The legislature has addressed this issue by making provision for the jury to be directed on delay in complaint where that issue is raised.[66] In this case, the judge gave such a direction, as follows:

Specifically, you have heard that the complainant, [A], made some police statements I think in 2015, so that is nearly 20 years after the offending is alleged to have occurred, and we sit here today, I think on my calculations, some 22 years or thereabouts, but in any event, the point is, there is a significant delay, and I want to give you some legal directions which relate to the issue of failure to complain and delay.
The first one is this. Experience shows that people react differently to sexual offences and there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time, and other[s] may never make a complaint. It is a common occurrence for there to be delay in making a complaint about a sexual offence.

Conclusion

[66]JDA s 52.

Directly addressing the falsity contention, senior counsel for the Crown opened his oral submissions by asserting that A

was a very compelling witness. He was clearly not a liar. He was not a fantasist. He was a witness of truth.

In our view, that submission should be upheld. The jury were entitled to reject the falsity contention. (We have viewed A’s evidence twice — first, before we had reviewed the other evidence and heard the arguments in the appeal and again afterwards. As it happens, the jury took a similar course, asking shortly after they commenced their deliberations to be provided with the recording of A’s evidence.)

Throughout his evidence, A came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution. As might have been expected, there were some things which he could remember and many things which he could not. And his explanations of why that was so had the ring of truth.

For example, during cross-examination A said that his memory of Archbishop Little (Cardinal Pell’s predecessor) was not ‘indelibly marked’ in his brain. The following exchange then took place:

Q:But you’d seen [Archbishop Little] for — since you’ve joined the choir for at least half a year at Masses; hadn’t you?
A:Yes, but I — as a 12-year-old boy, wasn’t looking at the facial features of, of the priests. I was looking at the sheet music, I was trying to adhere to a pretty strict regime as a choirboy. I was trying to do my best job as a choirboy and I knew then that just like any other pursuit like this, it was ah, quite serious on my performance and my behaviour mattered a lot. So, I was more focused on being um, doing the right thing as a choirboy than looking at how individuals looked up on the altar. The only time I really had time to focus was when a horrible incident happened to me and I, I can remember quite a bit about that.[67]

[67]Emphasis added.

Nothing about A’s account of the events suggested that it was either fabricated or a product of his imagination. As we have already indicated, there were features of his account, and of the way his testimony unfolded, which strongly indicated that it was neither of those things. Of course, A’s evidence could not be considered in isolation. Any first impression of him had to be constantly, and critically, re-evaluated in the light of the opportunity evidence.[68] Having done that for ourselves, we were not prompted at any stage to doubt the veracity of his evidence.
[68]SKA (2011) 243 CLR 400, 409 [24] (French CJ, Gummow and Kiefel JJ).

The impression we gained from reading the transcript of A’s cross-examination reinforced the impression we had gained from watching the recording of him giving evidence. Nothing about his answers under cross-examination suggested that he was concocting, or embellishing, or ‘fantasising’. On the contrary, both the content of what he said and the way in which he said it — including the language he used[69] — appeared to us to be entirely authentic.
[69]Ibid 411 [31].

There was, of course, no witness who could independently verify any aspect of A’s account of the alleged assaults. (We deal with B’s denial later in these reasons.) But, as the Crown submitted on the appeal, the credibility of his account was considerably enhanced by the accuracy of his description of the Priests’ Sacristy. He was able to describe in some detail the layout and furnishing of the alcove where he and B were discovered by Cardinal Pell. As the Crown pointed out, A correctly placed the wine area in the alcove, not where it is currently located.

More striking still was the fact that A identified the Priests’ Sacristy as the setting. At all other times, Cardinal Pell would have robed — and disrobed — in the Archbishop’s Sacristy. Exceptionally, however, that Sacristy was temporarily unavailable at the end of 1996 because its furniture was under repair. As a result, Cardinal Pell was — at the time of the alleged offending — having to use the Priests’ Sacristy to disrobe after Mass.

In our view, the jury were entitled to view these ‘undisputed facts’ as independent confirmation of A’s account of having been in the Priests’ Sacristy in that period. There was nothing to suggest that his knowledge of those matters could have been obtained otherwise. A’s evidence was that he had never been in the Priests’ Sacristy before. In cross-examination, he accepted, but did not recall, that he had been taken on a tour of the Cathedral when he first joined the choir. He said that he had no recollection of being shown the sacrisities on such a tour, but did not dispute it. The jury were entitled, in our view, to discount the possibility that going on such a tour would have explained A’s detailed knowledge — and recollection 20 years later — of the interior of that particular room.

Improbability

The defence also relied on arguments from improbability (or implausibility). These were powerful arguments. It was, of course, highly improbable that someone in Cardinal Pell’s position would have acted in the way alleged, in the circumstances in which he was alleged to have done so. In the first incident, there was a high risk of discovery; there was a high risk that one or other of the boys would cry out; and there was a high risk that they would report him. The risk to his reputation, and position, was enormous. The second incident, though much briefer, was even more brazen.

Early in his final address, defence counsel posed the question to the jury: ‘Who in their right mind would take the risk of doing what [A] says happened?’ As senior counsel for the Crown correctly pointed out, however, an individual may take a risk — even a high one — in circumstances where most other people would not. As is illustrated by the proven allegations of repeat offending by a high-profile defendant in Hughes v The Queen, sexual offending does sometimes take place in circumstances carrying a high risk of detection.[70]
[70](2017) 344 ALR 187, 203–4 [57]–[60] (Kiefel CJ, Bell, Keane and Edelman JJ). See also R v Bauer(a pseudonym) (2018) 359 ALR 359, 378–9 [59] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Papazoglou v The Queen (2014) 45 VR 457, 461 [14] (Maxwell P).

Another illustration is provided by Rapson v The Queen (‘Rapson’).[71] In that case, a priest who served as a teacher and later as vice-principal at a boys’ secondary school was convicted of five charges of rape and eight charges of indecent assault against boys in his charge.[72] As recorded in the sentencing judge’s reasons,[73] one of the indecent assaults occurred in the presence of two other priests and three other boys; two others were committed in the school infirmary in the presence of several other boys; and all five rapes were committed in the office which the offender occupied as vice-principal. On three of those occasions, he had gone to the victim’s dormitory late at night and ordered him to come to the office. This Court commented as follows:

Plainly enough, he could have chosen a variety of other locations for this purpose, including locations away from school premises. What is distinctive about his use of the office, apart from anything else, is that it was a location which embodied, and reinforced, his authority over the boys at the school.[74]

[71](2014) 45 VR 103.

[72]On a Crown concession, the Court of Appeal allowed his appeal against conviction and ordered a retrial. On the retrial, Rapson was again convicted on all eight charges: DPP v Rapson [2015] VCC 610.

[73]DPP v Rapson [2015] VCC 610.

[74]Rapson (2014) 45 VR 103, 114 [34] (Maxwell P, Nettle and Beach JJA).

In WEA v The Queen (‘WEA’),[75] this Court rejected an interlocutory appeal by a person charged with — and subsequently convicted of[76] — numerous sexual offences committed against five female members of his extended family while they were children. The Court agreed with the trial judge that the (alleged) offending was committed ‘in circumstances of remarkable brazenness’.[77] And, in Morris v The Queen,[78] a schoolteacher pleaded guilty to representative charges of indecent assault against six pupils in his charge. In a number of instances, the teacher had touched the pupil’s genitals while the pupil was sitting on the teacher’s knee reading a book in front of the class.[79]
[75]Unreported, Court of Appeal, Whelan and Coghlan JJA, 22 February 2013, cited in Rapson (2014) 45 VR 103, 112–113 [27]–[29].
[76]DPP v Wright [2013] VCC 1300.
[77]WEA (Unreported, Court of Appeal, Whelan and Coghlan JJA, 22 February 2013), [28].
[78]Morris v The Queen [2016] VSCA 331.
[79]Ibid [13]–[18] (Maxwell P and Cavanough AJA).

It is unnecessary for present purposes to speculate as to why a person might pursue sexual gratification in such obviously risky circumstances. Each case must, of course, be determined on its own facts. What these other cases do show, however, is that the existence of a high level of risk did not, in and of itself, oblige the jury to have a reasonable doubt that the alleged offending took place.

As with the issue of A’s silence after the offending, evaluating these questions of improbability involved the making of judgments about human behaviour. The jury were well placed to make those judgments. They had the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each other’s experiences in the course of their deliberations. These questions were, moreover, at the heart of this trial. They were clearly, and repeatedly, raised with the jury during the defence closing and again in the judge’s charge.

More than once, senior counsel for the Crown in this Court submitted that questions of this kind were ‘quintessentially’ matters for the jury. This is a notion which is often invoked in appellate consideration of the unreasonableness ground.[80] It implies that there are certain issues which juries, because of their character and composition, are peculiarly well placed to decide. The further implication is that, on such issues, the appeal court should somehow defer to the decision which the jury, by inference from their verdict, must have made.
[80] In Gillard v The Queen (2003) 219 CLR 1, for example, Gleeson CJ and Callinan J said that the assessment of the accused was ‘quintessentially a jury question’: at 15 [29]. In R v Henderson (2009) 22 VR 662, Warren CJ (with whom Vincent and Dodds-Streeton JJA agreed) said that whether the disputed evidence of prosecution witnesses was to be accepted ‘was quintessentially for the jury to decide’: at 697 [174].

Thus, at one point, senior counsel for the Crown invited the Court to ‘pay due deference to this jury verdict’. When pressed as to what this meant, counsel explained that he was endeavouring to give content to the High Court’s affirmation of the role of the jury as ‘the constitutional tribunal of fact.’[81] He also submitted that the importance of the jury system rested on the fact that ‘[t]welve people from … all walks of life can bring their common understanding of life together’.
[81] As to which, see Knight v The Queen (1992) 175 CLR 495, 511.

In our view, there is no room for any notion of deference on an appeal such as this. As explained earlier, the task for each member of the appeal court in considering the unreasonableness ground is to review the whole of the evidence and decide whether the guilty verdict was reasonably open on the evidence. For that purpose, each appeal judge makes an individual evaluation of the (im)probabilities of human behaviour when such questions arise. And we have each done that in the course of considering the evidence in the present case.

At the same time, in deciding whether the factual conclusions expressed in the verdict were reasonably open to the jury, we bear in mind that

the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[82]

And, further:
Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence.[83]

[82]Doney v The Queen (1990) 171 CLR 207, 214 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[83]MFA (2002) 213 CLR 606, 634 [96] (McHugh, Gummow and Kirby JJ).

These considerations inform the appellate court’s view of what the High Court in Baden-Clay called ‘the boundaries of reasonableness within which the jury’s function is to be informed’.[84] It follows that, in deciding whether a guilty verdict was reasonably open, an appeal court should be slow to substitute its own judgments about human behaviour for those made by a jury.
[84](2016) 258 CLR 308, 329 [65].

As evidenced by their verdict, this jury rejected the improbability arguments. In our view, it was reasonably open to them to do so. We are not persuaded that there was anything about A’s account of the incidents which was so inherently improbable as to require the jury to entertain a doubt.

As to the first incident, we can readily picture two choirboys deciding on the spur of the moment to break away from the procession once the pressure of public performance at Mass was released, and venturing into an area which was strictly out of bounds. The ‘swigging’ of the altar wine seems to us to be just the kind of thing which might occur in an adolescent escapade.

Nor — leaving aside the obvious risks to Cardinal Pell to which we have already referred — were the circumstances in which he came upon A and B such as to render the allegations of sexual offending so improbable that the jury must have had a doubt about them. On the contrary, the circumstances rendered the boys acutely vulnerable and powerless — and palpably so. They had been discovered, by the most powerful person in the Cathedral hierarchy, in the course of committing acts of serious disobedience and gross disrespect.

Nor do we regard the description of the second incident as being so improbable as to entail a reasonable doubt. As discussed more fully below, a fleeting physical encounter of the kind described by A can be readily imagined. Jurors would know from common experience that confined spaces facilitate furtive sexual touching, even when others are in the same space. And the act of squeezing the genitals is, itself, unremarkable as a form of sexual assault.[85] On A’s account, this was opportunistic offending, just as the first incident had been. On this occasion, however, it was over almost immediately. As he said in evidence-in-chief: ‘Just a quick, he squeezed and kept walking. It was something that was a complete and utter whirlwind. It was very quick.’
[85]See, eg, DPP v Rapson [2015] VCC 610, [5]–[7] (Judge Parrish).

What does seem improbable to us — referring again to the defence’s ‘fabrication’ hypothesis — is that A would have thought to invent a second incident if his true purpose was to advance false allegations against Cardinal Pell. Having to construct and maintain a story of a second and subsequent assault could only have made the undertaking much more difficult and risky for A, markedly increasing the likelihood that the whole story would unravel when tested.

Impossibility

As mentioned earlier, it was a central part of the defence case at trial that A’s account could not be accepted because what he purported to describe was simply impossible. It could not have occurred. Thus, early in his cross-examination, senior counsel for Cardinal Pell put to A that his account was ‘in fact, impossible. Your account of the incidents couldn’t have happened.’

In final address, senior counsel for Cardinal Pell told the jury:

What we say is, it’s not true because it’s impossible basically. There was simply no opportunity.

Counsel submitted to the jury that the timing as described by A was ‘impossible’ and that his description of the second incident made it ‘completely impossible’ for Cardinal Pell to have confronted A as alleged.

The written case for the appeal was just as emphatic, stating:

There was a significant body of evidence demonstrating, in various ways, that the offending not only did not occur but could not have occurred.

When, however, the implications of this submission were being explored in argument, senior counsel for Cardinal Pell submitted that it had not been necessary for the defence to couch its case at trial in the language of impossibility, as the defence bore no onus to make good any factual contention. Accordingly, before we examine the impossibility contentions on their merits, it is necessary to review the course of the trial to see how the defence position on impossibility was articulated before the jury.

Early in his opening address, senior counsel for Cardinal Pell told the jury that:

there will be evidence before you from a number of people about the liturgical and ecclesiastical nature of a Sunday solemn Mass, and it will be significant to understand it in this case, because the principal issue will be is it practically possible, was it practically possible or probable that George Pell, the man George Pell was alone with two young choristers, 13 year olds, and that he was alone within the ten minutes or so from the conclusion of the solemn mass on one of the two Sundays.[86]

[86]Emphasis added.

The ‘principal issue’ in the trial, as here defined by defence counsel, would be whether there had been the opportunity for Cardinal Pell to commit the offences. A little later, counsel submitted that the evidence from the other witnesses would show that it was impossible for the offending to have occurred, such that the jury would not be able to accept A’s account:

What is on trial is [A’s] evidence and the extent to which you are prepared to accept it beyond reasonable doubt because it is his evidence, and it is his evidence not supported by other evidence, and that is something of considerable significance. It is not supported by other evidence in this case. Indeed, the other evidence in this case goes the other way and tends to demonstrate that what he says is, in some instances, you might think, practically impossible, and in other instances highly improbable, and when you compound the sort of practical impossibilities with the improbabilities, one of you is a mathematician, you compound all those things, you come to the conclusion that you cannot accept what [A] says is true. So that’s the issue.[87]

Before this Court, the applicant submitted that his Honour had erred in ruling that the jury could not be shown the animation. Ms Shann, who argued this ground, submitted that the animation constituted argument, and not, as she submitted, his Honour had appeared to suggest, ‘evidence.’ It was intended merely to contrast the complainant’s account of the first incident with what was said to be the unchallenged evidence of a number of witnesses regarding their movements around the Cathedral after Sunday solemn Mass.

Additionally, Ms Shann submitted that the animation was ‘very well-grounded’ in the evidence. She pointed to various excerpts from the trial transcript that were contained within the window of text adjoining the particular representation.

Ms Shann further submitted that it had never been intended to play the animation through from start to finish. She said that the idea was that a portion of it be played, and then stopped. Mr Richter would then have used a laser pointer to demonstrate to the jury where the complainant’s account differed from that of the other witnesses. It was submitted that, without the jury being able to view the animation, it was possible that they might not understand the full force, cumulatively, of the defence argument in relation to opportunity.

Mr Boyce, in reply, submitted that the trial judge had been correct in refusing to allow the jury to view the moving representation. He submitted that the animation was neither a fair, nor accurate depiction of the state of the evidence, overall. He also submitted that it had a seductive quality, which could have led the jury into misconceived speculation.

In my view, Mr Boyce’s submission should be accepted. The animation bore little resemblance to the actual state of the evidence but rather presented a distorted picture of that evidence, no doubt, as the applicant would like the jury to have believed. It was tendentious in the extreme. For example, it showed the Priests’ Sacristy, with the complainant and the other boy in the room, in company with a large number of concelebrant priests. Self-evidently, there was no evidence of any kind that this particular scenario had occurred. It was plainly intended to implant in the minds of the jury that the complainant’s account must have been impossible because the evidence showed that there were concelebrant priests in the room at the time of the alleged offending.

The same is true of the animation showing both the applicant and Portelli remaining on the front steps of the Cathedral throughout the entire period that the alleged offending was said to have occurred. Whereas there was evidence from Portelli to that effect, the visual depiction of that evidence need hardly have been presented to the jury to make it clear that, if his account were accepted, or might reasonably be true, the applicant would inevitably have to be acquitted. That was conceded by Mr Gibson throughout the trial. In addition, the jury were so directed in the clearest of terms. The animation added nothing of any consequence, or substance, to the evidence given in the trial regarding that issue.

Of course, there was a good deal of evidence to suggest that the area in and around the Priests’ Sacristy was always crowded shortly after Sunday solemn Mass had concluded. The jury could hardly have failed to understand the significance of that evidence. To have portrayed it in a visual representation, ostensibly based on the state of the evidence led at the trial, had the potential, correctly recognised by the trial judge, of misleading, or at least confusing, the jury.

If it had been sought to tender the animation as evidence, perhaps equivalent to a chart or other extrinsic material, ostensibly to assist the jury in comprehending the issues before them, his Honour would have been well entitled to exclude it on the basis of s 135(b) of the Evidence Act. That would be on the basis that its probative value would be substantially outweighed by the danger that it might be misleading or confusing. Indeed, it is hardly conceivable that the trial judge would not have exercised that power.

The fact that Ms Shann maintained that Mr Richter proposed to rely upon the animation as nothing more than an aid to his argument, in the course of a closing address, does not mean that his Honour was powerless to prevent the jury from being presented with material in this highly questionable form.

A judge is not required to stand back and do nothing if he or she considers that arguments that are being presented to a jury by way of closing address misstate the evidence, or are otherwise misleading. Counsel can be called upon to correct such arguments. Alternatively, the trial judge can properly do so in the course of his or her charge.

The High Court’s recent decision in McKell v The Queen,[272] which restricts the scope for judicial comment upon the facts, in the course of a charge to the jury, would not preclude a trial judge from doing so. At the very least, there must be an inherent or implied power, vested in a trial judge, to ensure that the jury are not misled.[273]
[272][2019] HCA 5.
[273]See generally, Rosemary Pattenden, Judicial Discretion and Criminal Litigation (Clarendon Press, 2^nd ed, 1990) 136–8, where the learned author posits that in interests of fairness, a trial judge is entitled to restrain counsel from, inter alia, the adoption of ‘questionable trial tactics.’

In my view, the trial judge correctly ruled that the animation should not be used in the way contemplated by the defence. I would refuse leave to appeal on this ground.

Ground 3 — the arraignment before the jury panel

Ground 3 complains of a ‘fundamental irregularity in the trial process.’[274] This is said to be on the basis that the applicant was not arraigned ‘in the presence of the jury panel’, as required by ss 210 and 217 of the CPA.
[274]In Jago v District Court of New South Wales (1989) 168 CLR 23, Mason CJ spoke of a ‘fundamental defect’ which goes to the ‘root of the trial.’ That is essentially the same notion as that for which the applicant contends under Ground 3.

Those sections relevantly provide as follows:

210 When trial commences
(1) A trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with section 217.
(2) If a jury panel is split into 2 or more parts under section 30(5) of the Juries Act 2000, the trial commences when the accused pleads not guilty on arraignment in the presence of the first part of the jury panel that is present in court.

…
217 Arraignment in presence of jury panel
If an accused has not pleaded guilty to all of the charges on an indictment—
(a) the accused must be arraigned in the presence of the jury panel or, if a jury panel is split into 2 or more parts under section 30(5) of the Juries Act 2000, the first part of the jury panel that is present in court; and

(b) a jury for the trial must be empanelled from that jury panel.

…

Section 215 of the Act provides that an accused is arraigned when the court asks the accused whether he or she is the person named on the indictment, reads out each charge, and asks whether the accused pleads guilty or not guilty to the charge.

The Juries Act 2000 sets out the process for empanelling a jury. It makes provision in Part 5 for summoning of jurors in criminal trials,[275] and in Part 6 for creation of jury pools,[276] selection of panels,[277] and the calling of panels, or parts of split panels.[278]
[275]Section 22.
[276]Section 29.
[277]Section 30.
[278]Section 31.

Because of the extraordinary size of the jury panel required for this trial, the empanelment process was conducted in a somewhat unusual manner. All of the members of the jury panel remained in the jury panel room until excuses had been ruled upon. This aspect of the procedure was adopted with the full consent of both sides.

A video-link was set up between the courtroom and the jury panel room. The applicant and all counsel remained, at all times, in the courtroom. The trial judge moved between the courtroom and the jury panel room. He was in the courtroom when the applicant was arraigned. The instructing solicitors were in the jury panel room.

The applicant was arraigned only once. The arraignment took place when no jury panel members were physically present in the courtroom. However, the entire jury panel viewed the arraignment directly via a video-link. Once again, this was done with the consent of both sides.

The applicant’s written case noted that ss 210 and 217 of the CPA require arraignment to take place ‘in the presence of the jury panel.’ Mr Walker submitted that the failure to have arraigned the applicant in the ‘physical presence’ of the entire jury panel constituted a fundamental irregularity in the trial process, which rendered the trial a ‘nullity’ and required these verdicts to be set aside. That argument was said to rest on three propositions.

First, ss 210 and 217 were said to restrict the authority to empanel a jury to hear a criminal trial. These provisions required the jury to be empanelled from a particular jury panel, namely, the panel in whose ‘presence’ the accused had been arraigned. They operate to mark the point of that arraignment as the time at which a criminal trial commences.

Secondly, Mr Walker submitted that there was no justification for giving the word ‘presence’, in these provisions, other than its ordinary meaning. He submitted that ‘presence’, in this context, meant ‘physical presence’ and nothing less.

Thirdly, because these provisions went to the constitution and authority of the jury, their breach constituted a fundamental defect, in respect of which, no question of waiver could arise. Nor was it necessary, in these circumstances, to establish any actual prejudice.

Mr Walker supported this interpretation of these provisions by reference to s 30(5) of the Juries Act. That subsection provides that the proper officer may split the panel into two or more parts if it is considered that it is not practical for the whole panel to be present in the court at the one time, or alternatively, that it is expedient to do so for any other reason. In other words, it provides a mechanism whereby the arraignment can be conducted in the presence of the jury panel, albeit not all at one time.

Mr Walker referred to several authorities dealing with the consequences of non-compliance with provisions governing the empanelment of the jury.

In Maher v The Queen,[279] the accused had pleaded not guilty to 19 counts, originally contained in the indictment, and two further counts that were added after the jury had been sworn. The trial judge had the accused re-arraigned on the new counts, dismissing his objection that the court had no jurisdiction to entertain them. The two further counts were allowed, pursuant to a provision of the Queensland Criminal Code which made provision for joinder of counts in an indictment.
[279](1987) 163 CLR 221.

The High Court held that the jury could only have been sworn and empanelled to try the issues raised by the pleas to the original 19 counts at the time the jury were sworn. There was no provision authorising an amendment to the indictment by adding counts. As the jury had not been sworn to try the issues on the further counts, merely re-arraigning the appellant in front of the jury did not alter the issues that the jury were sworn to try. Accordingly, the convictions could not stand.

In Katsuno v The Queen,[280] the challenge to the appellant’s conviction was based upon non-compliance with several provisions of the Juries Act. It had been a longstanding practice in Victoria for the Chief Commissioner of Police, having been provided in confidence by the sheriff with a copy of the list of names on the panel from which the jury was to be struck, to provide the Director of Public Prosecutions with details of any convictions or any information of names concerning persons on the panel. That information was then made available to prosecutors.
[280](1999) 199 CLR 40.

The convictions of those on the panel were not such as to disqualify them under Schedule 2 of the Juries Act. The information was provided in order to assist the prosecutor in exercising the then right of peremptory challenge. Before the jury were empanelled, objection was taken to the use by the prosecutor of any such information which had been supplied by the Chief Commissioner. Alternatively, it was submitted that the information in question should be furnished to the defence.

There was a peremptory challenge by the prosecution to one potential juror on the basis of the information supplied. It was common ground that the potential juror had been challenged solely because of the information in question.

The High Court held that the Chief Commissioner’s practice was unlawful, being impliedly prohibited by several provisions of the Act. Nonetheless, by majority,[281] it was held that the prosecution had been entitled to exercise a right of peremptory challenge, irrespective of whether there was sound reason, or other basis, for its exercise. Accordingly, there had been no failure to observe the requirements of the criminal process in a fundamental respect. The appeal was dismissed.
[281](Gleeson CJ, Gaudron, Gummow and Callinan JJ, McHugh J dissenting, Kirby J dissenting).

Mr Boyce, in his reply regarding Ground 3, relied upon the prosecution’s written case. He chose not to elaborate upon that ground in oral argument. In his written case, he submitted that ss 210 and 217 concerned only the marking of a moment in time when a trial is deemed to have commenced. These provisions were not to be read as stipulating, in a manner from which there could be no departure, that the method of arraignment had to be by putting the charges to the accused, and having him plead to them in the physical presence of the jury panel. They were not to be read as precluding the process of arraignment from being carried out, for example, by video-link, as was done in this case.

Mr Boyce referred to the Explanatory Memorandum concerning the introduction of clauses 210 and 217 in the Criminal Procedure Bill, which he submitted, made it perfectly clear that these provision were not intended to preclude the course adopted by the trial judge in this matter.

Clause 210 defines the commencement of trial as when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with clause 217. The clause also provides for the situation where a jury panel is split into parts under section 30(5) of the Juries Act 2000, in which case the trial commences when the accused pleads not guilty on arraignment before the first of those parts.
This definition is new and resolves uncertainty surrounding when a trial formally commences arising from the difference between the approach at common law (see R v Talia [1996] 1 VR 462) and section 2 of the Crimes (Criminal Trials) Act 1999. The new definition ensures that empanelling of the jury forms part of the trial. It also allows particularity as to the timing of pre–trial obligations (e.g. in clauses 182 and 183 which now run backwards from the day on which the trial is ‘listed to commence’).[282]

[282]Explanatory Memorandum, Criminal Procedure Bill 2008, 78.

Mr Boyce submitted that clause 217 simply provided a ‘link’ to clause 210.[283]
[283]I note that some support for Mr Boyce’s interpretation of ss 210 and 217 may be found in the Legislative Guide to the Criminal Procedure Act 2009, which was produced by the Department of Justice. That is a document to which regard can be had, pursuant to the Interpretation of Legislation Act 1984, when engaged in an interpretive task. That Guide specifically refers to s 210 as having been enacted to define the moment at which a trial commences.

The history associated with the introduction of ss 210 and 217 sheds light upon the proper interpretation of these provisions. Prior to the CPA, the expression ‘commencement of trial’ could mean two different things. At common law, the formal commencement of trial was when the accused was arraigned, and not before.[284] Regrettably, and inconsistently, s 3 of the Crimes (Criminal Trials) Act 1999 had defined the commencement of the trial as being ‘the day on which the accused is due to be put in the charge of the jury.’ An earlier version of the Crimes (Criminal Trials) Act 1999, namely, the Crimes (Criminal Trials) Act 1993 (later repealed) had required the accused be ‘arraigned’ at the beginning of the first directions hearing, obviously long before any jury were empanelled.
[284]R v Talia [1996] 1 VR 462.

Mr Boyce submitted that ss 210 and 217 were intended to ensure that this wholly unsatisfactory state of affairs was brought to an end. Those provisions were not intended to lay down prescriptively, and in a manner from which there could not be even the slightest modification or departure, a requirement that the accused be in the courtroom, physically in the presence of the panel (or at least a part thereof), failing which, the trial could not be said to have commenced.

In effect, Mr Boyce’s submission regarding this matter amounted to this. Even if, contrary to his primary contention, the arraignment process adopted below was not conducted in absolute accordance with the procedures laid down in ss 210 and 217, it would not follow that the trial was a ‘nullity.’ That would depend, in accordance with the reasoning in Project Blue Sky v Australian Broadcasting Authority,[285] whether it was a purpose of these provisions wholly to invalidate any trial in which the arraignment was carried out in a manner that did not strictly accord with the terms of the statute, albeit in a manner that was agreed to by both sides, and could not conceivably have caused even the slightest prejudice to the applicant.
[285](1998) 194 CLR 355.

It would depend upon whether the course adopted failed in some substantive way to have achieved the purpose for which the statutory requirement was imposed. I simply cannot conceive of how that could be said with regard to what took place in this case.

The history of these provisions is important. However, as the High Court has said repeatedly, the task of interpretation both begins and ends with the language of the text.

The assumption built into Mr Walker’s submission, that the expression ‘in the presence of’ can have one meaning only, namely, physical presence, seems to me to be misplaced. To assert that the ‘ordinary meaning’ of the word ‘presence’ invariably connotes nothing less than physical presence is unconvincing.[286] It ignores the requirement that legislation be read purposively. Moreover, it can be argued that rather than merely construing the word ‘presence’, it requires an additional word, ‘physical’, to be read into the statute.
[286]In some aspects of the law, where ‘presence’ is required, what is sometimes described as ‘constructive presence’ has been held to meet this requirement. See, for example, the discussion of ‘presence’ in the context of criminal complicity in Peter Gillies, The Law of Criminal Complicity (Lawbook, 1980), 46. The author refers to R v Manners (1837) 173 ER 349, 349, as a source of the doctrine of ‘constructive presence’ in English law.

The interpretative task is facilitated by having regard to both history and context. As indicated, the history of the provisions under consideration makes it clear that they were not intended to perform the role for which Mr Walker contended. The textual analysis suggests that when the legislature has omitted, or not included, a particular word from a composite expression, a court will not ordinarily re-write the provision so the word or words are ‘read in.’[287] Certainly, it will not do so without good reason. In the present case, no such reason suggests itself.
[287]A more flexible approach to reading into a provision words that are not there is said to be reflected in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 (McHugh JA). On the other hand, a somewhat more restricted view appears to have been taken in R v Young (1999) 46 NSWLR 681, [11]–[16] (Spigelman CJ), DPP v Chan (2001) 52 NSWLR 56, and perhaps, in this State in Victorian Work Cover Authority v Wilson (2004) 10 VR 298, [25]–[28] (Callaway JA). See generally, Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014), 76.

Mr Boyce submitted that the point must surely be that the jury panel in this case were able to see and hear the applicant, quite clearly, as he pleaded not guilty to each of the charges. The use of a video-link, in circumstances such as those which prevailed in the present case, did not constitute even the slightest impediment to the process of arraignment. It did not in any way impinge upon the jury panel’s capacity to witness that process.

I should add that the use of a video-link is now commonplace in criminal trials throughout this country. It could hardly be suggested that the right of an accused to confront his or her accuser has somehow been diminished by the fact that technology enables that process effectively and justly to be undertaken.

I accept that there are older authorities which suggest that the term ‘present’, in a statutory context, should ordinarily be interpreted as ‘physically present.’[288] In the light of modern technology, such a narrow and restrictive interpretation of that term seems, to me, not to be warranted. Many meetings are routinely conducted using video-conferencing facilities. It is plain that, depending upon the form of any legal requirement stipulating ‘presence’, the use of such facilities is readily accepted, and ‘presence’ can thereby be achieved, as it was here.
[288]Harris (M) Ltd, Petitioners 1956 SLT 367, 368–9 (Lord Sorn).

This conclusion is not at odds with the requirements set out in s 30(5) of the Juries Act. That sub-section clearly has operation when a jury panel is split in two and there are no video conferencing facilities used.

There is some recent authority which might be thought to bear upon Ground 3. In Amagwula v The Queen (‘Amagwula’),[289] the New South Wales Court of Criminal Appeal dealt with an appeal against conviction based, in large part, upon the fact that a trial judge, confronted with a self-represented accused, had not required him to move back from the bar table, and stand in the dock so that he could plead to the individual charges in the presence of the jury panel. Rather, the judge said that, in arraigning the accused, he would not ask him personally to enter a plea. Instead, he would direct that pleas of not guilty be entered in relation to each charge, after the accused had been arraigned.
[289][2019] NSWCCA 156 (‘Amagwula’).

It was submitted on appeal that, there having been no valid arraignment, the trial had been a ‘nullity.’ That submission was rejected. It was held that any irregularity did not ‘go to the root of the trial.’ Moreover, the course adopted by the trial judge had not, in any way, resulted in prejudice to the appellant.

Justice Basten, who delivered the lead judgment of the Court, observed that the term ‘arraignment’ was not defined in the Criminal Procedure Act 1986 (NSW). Although Archbold had described the process of arraignment as involving a reading of the indictment to him, and asking whether he is guilty or not, with a requirement that he plead personally, and not through counsel or another person, the process followed in the particular case before the Court did not give rise to a nullity.

First, it was clear that the process of arraignment was governed by statute, and that the consequence of the precise procedure for arraignment not having been followed would necessarily depend on the proper construction of the relevant provisions. That, in turn, would depend upon the apparent purpose of arraignment, in the context of a criminal trial.[290]
[290]His Honour referred to R v Williams [1978] QB 373, 379F (‘Williams’), where the Court of Appeal held that the accused had the right to waive the right to be arraigned. In that case, the accused heard the indictment being read out, and also heard a statement by the clerk to the effect that he had pleaded not guilty to it. That statement was factually incorrect, but the accused did not demur to it. The Court observed that ‘insistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea, and where the ensuing proceedings are precisely what they would have been if the accused had himself made the plea in plain terms.’

Of course, the legislative background to the arraignment process in New South Wales differs from that which applies in this State. By enacting s 130(3) of the Criminal Procedure Act 1986, the New South Wales legislature had clearly intended to change the manner of conducted of an arraignment under the general law. Although it was, and remains common practice to require the accused to plead personally to each count in an indictment, under the general law, a failure in that regard did not vitiate the ensuing trial. All that was necessary was that the accused knew the contents of the indictment and, in fact, intended to plead not guilty.

Amagwula is obviously not directly in point in relation to Ground 3. Nonetheless, aspects of the reasoning underlying that decision might be thought to support the prosecution contention with respect to this ground. Given the absence of any prejudice to the accused in the procedure in fact adopted in that case, and absent any statutory implication that a different procedure was required to ensure the validity of the trial, it was held that there had been no miscarriage of justice.

Both parties’ attention was drawn to Amagwula by the Court. Mr Walker, on behalf of the applicant, submitted that none of the reasoning in that case assists the respondent in the present case. No question of prejudice or waiver could arise. Moreover, the Victorian provisions require a specific procedure to be followed, and that had not been done.

In addition, Mr Walker referred to the judgment of Button J in Amagwula. His Honour concluded that there had been an irregularity, but not one that required the trial to be treated as a nullity. Nonetheless, and despite the movement away from procedural formalism in criminal law, a procedural failing of the kind said to have occurred in the present case required that the applicant’s convictions be set aside, the trial having been a ‘nullity.’ Mr Walker submitted that the Victorian legislature had empowered only those members of the jury panel, in whose physical presence the applicant had been arraigned, to sit as jurors in the trial. He submitted that the jurors who convicted the applicant were not authorised by law to try the applicant.

Mr Gibson, who replied to this Court’s invitation to comment upon Amagwula on behalf of the respondent, submitted that the New South Wales Court’s reliance upon the decision of the English Court of Appeal in Williams gave added force to the general submission that there had been no fundamental defect or irregularity in the arraignment process. In the present case, there had been a formal arraignment. The jury panel were left in no doubt as to the nature of the charges, nor as to the plea entered in response to them. The jury panel heard and saw the applicant enter his pleas in relation to all charges, and did so in real time. This was not a case of the applicant having remained silent, in the face of arraignment, as had occurred in Amagwula.

In this case, the applicant was arraigned in the presence of the jury. It was a properly constituted jury with full authority. The process adopted below did not give rise to a ‘fundamental irregularity’ ‘going to the root of the trial.’ It did not render the trial a nullity. The applicant did not, by reason of the use of video-link, suffer a miscarriage of justice. I would refuse leave to appeal on this ground.

Orders

I would grant leave to appeal against conviction on Ground 1. I would order that the appeal be treated as having been heard instanter, and that it be allowed. I would set aside each of the convictions sustained below, and the sentences passed thereon. I would further order that there be entered judgment and verdicts of acquittal on each charge.

I would refuse leave to appeal on both Grounds 2 and 3.

ANNEXURE A

This annexure sets out in alphabetical order the witnesses specifically referred to in this Court’s reasons. It excludes the complainant and other witnesses who gave evidence at trial but who were not specifically referred to in this Court’s reasons.

Surname Given names Role and age in 1996

1.     Bonomy Robert Anthony Chorister 1990–1998, 15 years old in December 1996

2.     Connor Jeffrey Ian Altar server 1994–November 1997, 40 years old in December 1996

3.     Cox Geoffrey Arnold Assistant organist and choirmaster 1995–1999, director of music 1999–2014

4.     Dearing David Michael Chorister between 1993–2000, 14 years old in December 1996

5.     Dearing Rodney David Chorister June 1993–2002 and father of David Dearing, 44 years old in December 1996

6.     Derrij Farris Chorister from 1994 (grade 5) until the end of year 12, 12 years old in 1996

7.     Doyle Christopher Leigh Chorister 1994– 1999, 14 years old in December 1996

8.     Finnigan Peter Michael Choir member from 1990 – 1996, Choir Marshal from 1993/1994 – 1996

9.     Ford Stuart Michael Chorister 1994 – 2000, turned 14 years old in December 1996

10.   La Greca Andrew Chorister 1993–2000, 13 years old in December 1996

11.   Mallinson John Whalley Organist 1976–1999, choirmaster 1987 – 1999, 62 years old in December 1996

12.   May John Lawrence Sacramental wine maker

13.   Mayes David Nicholas Andrew Chorister 1994–2000, 13 years old in December 1996

14.   McGlone Daniel Newman Altar server from 1987 until 1997, 27 years old in December 1996

15.   Nathan Anthony Lord Chorister 1993–2000, 13 years old in December 1996

16.   Parissi Luciano Chorister 1991–2001, 16 years old in December 1996

17.   Portelli Charles Assistant priest January 1993–June 1996, Master of Ceremonies to Archbishop Pell September 1996–2000

18.   Potter Maxwell Francis Sacristan 1963–2001, 62 years old in December 1996

19.   Reed Christopher Ashley Informant

20.   Thomas Aaron Roger Chorister 1993–2001, 13 years old in December 1996

Surname	Given names	Role and age in 1996
1.	Bonomy	Robert Anthony	Chorister 1990–1998, 15 years old in December 1996
2.	Connor	Jeffrey Ian	Altar server 1994–November 1997, 40 years old in December 1996
3.	Cox	Geoffrey Arnold	Assistant organist and choirmaster 1995–1999, director of music 1999–2014
4.	Dearing	David Michael	Chorister between 1993–2000, 14 years old in December 1996
5.	Dearing	Rodney David	Chorister June 1993–2002 and father of David Dearing, 44 years old in December 1996
6.	Derrij	Farris	Chorister from 1994 (grade 5) until the end of year 12, 12 years old in 1996
7.	Doyle	Christopher Leigh	Chorister 1994– 1999, 14 years old in December 1996
8.	Finnigan	Peter Michael	Choir member from 1990 – 1996, Choir Marshal from 1993/1994 – 1996
9.	Ford	Stuart Michael	Chorister 1994 – 2000, turned 14 years old in December 1996
10.	La Greca	Andrew	Chorister 1993–2000, 13 years old in December 1996
11.	Mallinson	John Whalley	Organist 1976–1999, choirmaster 1987 – 1999, 62 years old in December 1996
12.	May	John Lawrence	Sacramental wine maker
13.	Mayes	David Nicholas Andrew	Chorister 1994–2000, 13 years old in December 1996
14.	McGlone	Daniel Newman	Altar server from 1987 until 1997, 27 years old in December 1996
15.	Nathan	Anthony Lord	Chorister 1993–2000, 13 years old in December 1996
16.	Parissi	Luciano	Chorister 1991–2001, 16 years old in December 1996
17.	Portelli	Charles	Assistant priest January 1993–June 1996, Master of Ceremonies to Archbishop Pell September 1996–2000
18.	Potter	Maxwell Francis	Sacristan 1963–2001, 62 years old in December 1996
19.	Reed	Christopher Ashley	Informant
20.	Thomas	Aaron Roger	Chorister 1993–2001, 13 years old in December 1996

[2019] VSCA 186

21 August 2019