Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
27.
witnesses, as to what occurred after Sunday solemn Mass in the period when the applicant was archbishop. And, as their Honours also acknowledged, a defining feature of religious observance is adherence to ritual and compliance with established practice[1]. However, their Honours again discounted this body of evidence, saying[2]:
"[A]ttempting to recall particular events is all the more difficult when the events being described are – as they were here – of a kind which was repeated week after week, year after year, and involved the same participants, in the same setting, performing the same rituals and following the same routines."
Evidence of a person's habit or practice of acting in a particular way to establish that the person acted in that way on a specific occasion may have considerable probative value. As Professor Wigmore explained, "[e]very day's experience and reasoning make it clear enough"[3]. The evidence of religious ritual and practice in this case had particular probative value for the reason that their Honours first identified: adherence to ritual and compliance with established liturgical practice is a defining feature of religious observance. Contrary to the Court of Appeal majority's analysis, the absence of any "significant and unusual event" associated with solemn Mass on 15 and 22 December 1996 tells against the likelihood of Portelli having departed from his duties as master of ceremonies.
The Court of Appeal majority took into account the evidence of four witnesses in concluding not only that it was possible that the applicant was alone and robed in contravention of centuries-old church law, but that the evidence of witnesses to the contrary did not raise a reasonable doubt as to the applicant's guilt[4].
