Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
14.
jury must as distinct from might, have entertained a doubt about the appellant's guilt." (footnote omitted; emphasis in original)
As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence[1]. Libke did not depart from M.
When it came to applying the M test, their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence and the capacity of the evidence of the opportunity witnesses to engender a reasonable doubt as to his allegations. Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the "solid obstacles" to conviction), that notwithstanding each obstacle it remained possible that A's account was correct. The analysis failed to engage with whether, against this body of evidence, it was reasonably possible that A's account was not correct, such that there was a reasonable doubt as to the applicant's guilt.
At the trial and in the Court of Appeal, the applicant relied not only on the evidence of the opportunity witnesses, but also on the content of A's evidence, as giving rise to a doubt as to the truth and reliability of his allegations. It was submitted that A had adapted his evidence in material respects to address matters that had been raised with him for the first time at the committal hearing. These included whether A had changed his account of how the applicant had exposed his penis because of the suggested impossibility of pulling his vestments aside in the way A had first stated. They also included whether A had changed his account of how he and B had re-joined the choir after the assaults. The Court of Appeal majority did not consider that, in any of the respects in which A's evidence at trial varied from his earlier accounts, the variation was such as to have required the jury to entertain a doubt as to the credibility and reliability of his account of the offences.
Weinberg JA, in dissent, considered that there was ample material upon which A's account could be subject to legitimate criticism: there were
- ↑ Pell v The Queen [2019] VSCA 186 at [24].
