Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
17.
a reasonable doubt as to his guilt. The prosecution conceded that the offences alleged in the first incident could not have been committed if, following Mass, the applicant had stood on the Cathedral steps greeting congregants for ten minutes. Their Honours' conclusion that it was reasonably possible that the applicant had not adhered to his practice on the date of the first incident necessarily carried with it acceptance that it was reasonably possible that he had.
This conclusion sufficed, in the applicant's submission, to require that his appeal be allowed, and his convictions quashed, in respect of the first four charges. The same logic applied to the offence charged in the second incident: if it was reasonably possible that the applicant was greeting congregants following solemn Mass for not less than ten minutes on 23 February 1997, he could not have been in the corridor outside the sacristies as the choir processed back through the sacristy corridor to the Knox Centre.
The applicant's challenge in this Court was not developed by sole reliance on the evidence of his practice of greeting congregants on the Cathedral steps. The focus of his submissions was on the compounding effect of the improbability of events having occurred as A described them in light of unchallenged direct evidence and evidence of practice. The applicant adopted Weinberg JA's analysis of his submission below with respect to the "compounding improbabilities"[1]. His Honour distilled the applicant's case to ten claimed compounding improbabilities[2].
In this Court, the respondent correctly noted that a number of the claimed improbabilities raise the same point. It remains that acceptance of A's account of the first incident requires finding that: (i) contrary to the applicant's practice, he did not stand on the steps of the Cathedral greeting congregants for ten minutes or longer; (ii) contrary to long-standing church practice, the applicant returned unaccompanied to the priests' sacristy in his ceremonial vestments; (iii) from the time A and B re-entered the Cathedral, to the conclusion of the assaults, an interval of some five to six minutes, no other person entered the priests' sacristy; and (iv) no persons observed, and took action to stop, two robed choristers leaving the procession and going back into the Cathedral.
