28.
The evidence to which their Honours referred was that of three choirboys – Robert Bonomy, David Mayes and Nathan – and that of the organist and choirmaster, John Mallinson. Bonomy said that he had seen the applicant robed in the sacristy corridor and sometimes the applicant was with others and sometimes he was on his own. Bonomy had been lined up with the choir in the sacristy corridor waiting to process into Mass when he made these observations.
Their Honours noted that Nathan and Mayes recalled the applicant coming into the choir room after Mass and that "[v]ery infrequently, Nathan said, [the applicant] would be robed"[1]. Nathan had a recollection of the applicant popping into the choir room to congratulate the choir on a good performance or a great Mass. He could not remember whether the applicant was alone or with someone else, nor whether he was robed. The occasion does not appear to have been further identified.
Mayes' evidence, to which their Honours referred, was his memory of the applicant coming into the choir room "in the first five minutes while everybody was still there". When asked if the applicant was robed, he replied that it was "very rare to see him unrobed. Yeah, he would have been robed." Mayes could not say whether the applicant was accompanied or not on this occasion.
Mayes agreed that there were infrequent special functions for the choir to which parents were invited at which the applicant would be introduced to the parents. He was unable to say whether the applicant was robed on these occasions. Mayes recalled leaving the Cathedral after Sunday solemn Mass and seeing the applicant on the Cathedral steps shaking hands or talking to congregants. He agreed that this would have been 15 minutes or more after Mass had finished.
The Court of Appeal majority noted Mallinson's evidence of probably having seen the applicant in the sacristy corridor many times. Their Honours extracted the following exchange concerning that evidence:
"Q. And again, was he on his own or with anyone?
A. Sometimes he was with somebody and sometimes he would be on his own.
- ↑ Pell v The Queen [2019] VSCA 186 at [290].
