Norm Smith Medallist
- Oct 12, 2017
- AFL Club
Insulting for the Victim, Jury and Court of Appeal.118 It may be accepted that the Court of Appeal majority did not err in holding that A's evidence of the first incident did not contain discrepancies, or display inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt. The likelihood of two choirboys in their gowns being able to slip away from the procession without detection; of finding altar wine in an unlocked cupboard; and of the applicant being able to manoeuvre his vestments to expose his penis are considerations that may be put to one side. It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests' sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests' sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix.
119 Upon the assumption that the jury assessed A's evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.
Yes we believe the victim to be a truthful and compelling witness (although the Court of Appeal should not have seen his video evidence because they might have been influenced by how truthful he was).
Jury and Court of Appeal heard evidence how Portelli often wasn't on the steps or in the rooms, because he was having a smoke outside in private. And his honesty was not in question? Jury and Court of Appeal looked closely at and tried on Pell's vestments and found it possible he could have exposed himself.
But the jury was not acting rationally when they found him guilty beyond reasonable doubt?