It is common ground that if Pell spent 10 minutes or longer talking to worshippers on the day in 1996 he is alleged to have assaulted the choirboys in the priests’ sacristy, he couldn’t have committed the offences.
Monsignor Portelli, who served as the master of ceremonies at St Patrick’s, testified to Pell’s usual practice of talking to parishioners after mass and specifically recalled him doing so after his first mass as archbishop due to the large number of people who gathered to meet him.
Justice Bell, the member of the full bench with the most experience in criminal law, asked Ms Judd: ‘‘Why did it not raise a reasonable doubt as to the commission of the offence?’’
Ms Judd replied: ‘‘I do accept that when you look at Monsignor Portelli on his own, we may not be able to negate this to the standard we need to but when you look at the whole of the evidence, it does.’’
Pell was convicted in December 2018 of four counts of child sex offences and sentenced to six years jail. The verdict was upheld by a majority decision of the Victorian Court of Appeal after reviewing all the evidence in the case.
A question before the High Court is whether the Court of Appeal majority, in its treatment of evidence which challenged whether Pell had an opportunity to abuse the choirboys, in effect forced Pell to prove the offending was impossible rather than keeping the onus on the prosecution to eliminate all reasonable doubt.
This is disputed by the Victorian DPP, which submits the Court of Appeal majority adopted a correct approach and Pell’s conviction should stand.
Chief Justice Susan Kiefel, Justice Geoffrey Nettle, Justice Michelle Gordon and Justice Bell all questioned Ms Judd about the evidence of Monsignor Portelli, a witness whose integrity and truthfulness was not challenged by Pell’s prosecutors.
Ms Judd said Monsignor Portelli’s evidence was largely confined to Pell’s usual practices and movements and that he was unable to recall specific details about what happened during and after mass on the days the offences were alleged to have taken place.
She agreed that this evidence, along with Monsignor Portelli’s insistence that it was his practice to always accompany the Archbishop when he was formally robed, was crucial to the case.
‘‘Portelli is the key,’’ she said.
Monsignor Portelli, when questioned at trial, said of Pell’s practice of meeting parishioners on the steps: ‘‘Yes, he always did that … that was his normal practice.’’
He did not deny that Pell may have departed from his usual practice but could not recall an instance when he had.
Ms Judd said this evidence conflicted with the accounts of other choirboys who recalled occasions when Pell did not stop on the steps to greet worshippers and other evidence put to the jury.
The hearing is expected to conclude later on Thursday.
If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.
Chip Le Grand is The Age’s chief reporter. He writes about crime, sport and national affairs, with a particular focus on Melbourne.