(Yesterday Pell’s lawyer Bret Walker SC argued that a balance of improbabilities had been set out by defence witnesses and that this evidence was not fully taken into account.)

The morning opens with the question of whether the video evidence of the complainant should have been viewed by the Court of Appeal. And ultimately whether they were swayed by it.

From questions by the judges it seems that looking at the video would help in assessing the “demeanour of the witness” (everything else could be assessed from the written transcript of the trials. But demeanour is a matter for the jury rather than the appellate court the judges suggest.

Justices Bell and Nettle ask questions that go to whether the Court of Appeal had a good “forensic reason” to look at the video. The suggestion is that they could have carried out their appeal function by looking at the transcript.

Judd says that attacks on the complaints evidence, and his changes of story meant that looking at the video “looking at a witness under attack” was relevant.

She argues that the appeal judges referred to the transcript extensively in their judgement. The Chief Justice points to statements in the Appeal Court majority judgment  about their assessment of the complainant based on the video.

A key question from the Chief Justice “where does the word ‘compelling’ come from when the Court of Appeal judges describe the complainants evidence as ‘compelling’?” Was it from watching the video twice?

The Court of Appeal judges did assess the “opportunity evidence” and came to the conclusion that it was open to the jury to conclude that the offending could have taken place. The evidence of of improbability did not get to the point that a reasonable doubt was raised Judd says.

Judd says that the practices in the Cathedral were not consistently carried out – so that the evidence of improbability based on where people normally were  do not establish a reasonable doubt. She says that Monsignor Portelli’s evidence of Pell’s practice of standing outside the west door did not rise to remembering those dates. Justice Bell asks that if after 22 years a witness, Portelli, testified that he was with Pell on his first Sunday why did that not raise a reasonable doubt? (That first Sunday was the suggested date of the first offending).

Whether Pell meets and greets people at the Cathedral’s West door – especially on the first Sunday -becomes a key talking point. this is because if Pell did that there would have been no time for the offences to take place in the sacristy – because other people would have been there. Justices raise the point that if it was usual for Pell to go to the door and meet and greet – that would be enough to raise a reasonable doubt.

The defence witness Monsignor Portelli made concessions in cross examination about whether Pell greeted people after every mass, Judd emphasises. But “you still have a witness giving evidence about the first Sunday, and the usual practices”, Justice Bell points out.

Judd takes the court through choirboys’ evidence about where Pell went after the service. Sometimes he continued with the procession round the back of the Cathedral.

Bell: “the appeal Judges found it was open to the jury that there was a real possibility that the archbishop was in the sacristy [where the alleged offences took place]. But it leaves open the possibility that he was not.”

Another key passage: Nettle asked if the Portelli’s evidence for the firsts Sunday (that Pell greeted people at the door on his first Sunday)  “Was the jury entitled to find beyond reasonable doubt that it was not true?” Judd: “Can I reflect on that and answer after lunch?”

A question from Judd: “How did he get the room right?” The priests’ sacristy was only used by Pell to disrobe for a limited period. (Due to renovations.) But the complainant picked that room.”He didn’t even know the name, he had to point to it.”

“You can’t view what the complainant described through an open door. He had to have an opportunity to go into that room. But it was limited opportunity, because it was pretty well kept locked.”

“There is no other evidence for how he would have known about that room unless the offence occurred”. Two Justices (including Nettle) say that the complainant might have had opportunity during the two years he was a choir boy.

The court resumes: 

Judd says that Pell was disrobing in the Priest’s sacristy rather than the Archbishop’s Sacristy at the Cathedral for a short time was not well known. “If the complainant was fantasising surely it would have been the Archbishop’s sacristy he would have made a story up about.” The complainant identified the room when he was taken to the Cathedral. she points out that the complainant’s description is matched by the evidence of defence witness Portelli.

Judd relies on the argument that although a choirboy for two years that the complainant would not have been able to get into that room. but he describes it accurately.

“That shows he was there at some point in time, does it go any further than that?” asks Bell.

Later Keifel CJ asks a series of tough questions as Judd seems to shift ground on timing of the alleged offences, differing from the court of appeal. “That’s why prosecutors want to tie these important issues down.” Ouch. Today there are many more questions and harder ones. The judges are very interested in the timeline at the end of mass and ask lots of follow up questions.

The presence of other priests at the Sunday masses, up to 20 according to one witness, would have meant other priests in the sacristy – puts Justice Nettle.

Bell asks about the timeline at the end of the mass. She asks if the procession towards the door and the private prayer time for the congregation happens at the same time. This affects when the altar servers were in the sacristy, clearing the sacred vessels. Bell asks whether the servers were still robed while they did this. She wants to know where they were. Gagelar points to evidence that the servers waited to the prayer time was over to clear the vessels. (This restricts the opportunity for the offences to take place).

Bell asks a probing question asking where the altar servers were when the offences allegedly too place. Judd says there is no evidence. Gagelar follows up asking where the priests were , as they had to disrobe. Lots of questions. Judd once again says is there is no evidence for where the priests were.

Finally, the question of the onus of proof. Judd  is attempting to rebut Bret Walker’s argument from yesterday, regarding the improbability of the offence happening. Judd is arguing against the idea that in the earlier trials the prosecution was being asked to prove the offending did not happen – as distinct from there being reasonable doubt. Proving a readable opportunity for the offences to take places not enough.

On the “compounding improbabilities” point raised by walker (and Weinberg) she suggests that they are not all separate points. She criticises Weinberg’s analysis. Bell jumps in and ask if the prosecutions case contains improbabilities on their own. Judd acknowledged that the “meet and greet’ issues and “timing” were the main points against  her case but said they were not compounding improbabilities – they are independent arguments.

Bell points out that the lack of precise memories by the defence witnesses were part of the prosecution case, but that the complainant had gaps in his story too.

Judd returns to Nettle’ s question about Portelli’s evidence of being with the Archbishop on his first Sunday and contends that it was still open to the jury to accept the complaints story beyond reasonable doubt despite Portelli. She points out that the Portelli evidence referred only to one of the two possible Sundays that first offence may have occurred on.

Judd turns to a Gagelar question about whether a choir rehearsal took place. Could the complainant have rejoined the choir during the rehearsal without being noticed?

The final point from Judd is that if the High Court finds a problem with the lower courts reasoning they will have to go back and look at tall the evidence. Bell suggests that if Walker’s point about reasonable doubt that the offence is found, could Pell be exonerated. Judd submits that  that the High Court would have to reassess all the evidence or remit the case back to a lower court.

Bret Walkers reply brings up the question of timeline. He says a theory withdrawn by the prosecution at trial is now being put forward. “Our submission is that we should not have to put up with such improvisation at this time.” He says the evidence did not “clear the room of servers for the requisite time.” He draws the courts attention to Justice Nettle’s question about other priests being part of the service and also using the sacristy to disrobe. “There is nothing to displace that as a reasonable possibility.”

A further compounding probability was “the long held ecclesastical tradition” of not leaving the Archbishop alone.

Walker brings up his point from yesterday of a false equation between the private prayer time for the congregation in the cathedral (5-6 mins) and the same period of time being required for the offences. “A prosecutorial improvisation in the High Court that should not be countenanced….in our submission there is a lack of solidity in the argument.”

Reversal of the onus of proof remains part of Walker’s case. “A grotesque reversal of the onus of proof” has occurred with the argument put by the prosecution that all they have to do is prove that a church practice (such as greeting parishioners at the door) may have not taken place on a particular Sunday to remove reasonable doubt.

The sacristy: “There is nothing about knowledge of the room (by the complainant,) to place the Archbishop within it. After all this is a complainant who says he sneaks off to a place he should not have been.”

Bell: what if your case is made and error is shown? “If we succeed it amounts to this court doing what the appellate court should have done which is to quash the conviction. We have not put an argument for a retrial.”

“It certainly does not involve sending it back to the court of appeal.”Walker submits that the matter should finish in the high Court.

The court reserves its decision and adjourns to 9.45 tomorrow. (But not for this case.)