Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
25.
come in after Mass had finished and remain for the next ten to 15 minutes or so. McGlone likened it to the green room in an opera house, explaining that it was where the sacred vessels were taken, and that the servers "are moving back and forth into that room".
Consideration – (i) the applicant's movements after Mass and (ii) the applicant always accompanied
The Court of Appeal majority dealt with the evidence of the applicant greeting congregants on the Cathedral steps, observing[1]:
"But, on the critical issue of whether [the applicant] stood on the steps of the Cathedral on the day of the first or second Mass, and if so for how long, the recollection of the opportunity witnesses must necessarily be affected by their recollection of the ritual that developed thereafter."
Notwithstanding that Portelli's evidence of having an actual recall of being present beside the applicant on the steps of the Cathedral as the applicant greeted congregants on 15 and 22 December 1996 was unchallenged, the Court of Appeal majority said it was open to the jury to have reservations about the reliability of his affirmative answers given in cross-examination. The Court of Appeal majority also considered that it was open to have reservations about the reliability of this evidence given the improbability of Portelli having a specific recollection of particular Masses in the absence of "some significant and unusual event" having occurred at one or other of them. Their Honours observed that, while Portelli may have had a general recollection of the first time the applicant said Sunday solemn Mass at the Cathedral, he had demonstrated a lack of detailed recall of the events of that day.
The suggestion that witnesses' memories may have been affected by the ritual that developed thereafter has echoes of the prosecutor's closing submission, which was that the applicant's practice of greeting congregants may not have developed before 1997. It is a contention that finds no support in the evidence and was not pursued by the respondent on appeal to this Court. It will be recalled that Finnigan's understanding was that the applicant stood on the steps greeting congregants for "something like" ten minutes as the procession, with him towards the rear, made its way around the side of the Cathedral. His understanding in this
- ↑ Pell v The Queen [2019] VSCA 186 at [161].
