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61 The defence attack on A’s credibility and reliability comprised three distinct strands. The first was that A’s account was simply false. Either he was a liar, who had modified his fabricated story ‘when faced with impossibilities and difficulties’, or he was recounting a fantasy which he had, over time, come to believe was true. According to the appeal submission:
[A’s] account was not simply implausible, he also changed it repeatedly in critical ways, when he was presented with facts which exposed its impossibility. At best, these repeated alterations revealed him to be uncertain and unreliable about critical particulars of his own narrative. At worst, he demonstrated a tendency to deliberately alter crucial elements of his story on numerous occasions when confronted by solid obstacles. These repeated attempts to make two factually impossible allegations marginally more realistic ultimately failed.
mce-anchor62 The second strand was that of inherent improbability. A’s claims were ‘so implausible that a reasonable jury must have had a reasonable doubt’. According to the appeal submission:
[A] claimed in the first incident that Pell had engaged in visually unambiguous sexual acts, immediately after a solemn Mass, in a room that he must have expected those involved in the ceremony to enter as those acts were occurring, having left open a door to a well-traversed corridor, without making any suggestions of secrecy despite the considerable noise that [A] claimed he and
made during the alleged abuse, and in spite of private lockable rooms being available to Pell only a short distance away. And in the second incident, [A] claimed that 6 foot 4 inches Pell, fully robed, pushed his way, somehow, through a procession and then violently sexually assaulted [A], completely unperturbed by having a corridor of choristers as eye witnesses to his sexual offending.
mce-anchor63 Thirdly — and this was the contention most prominently advanced both at trial and on appeal — it was factually impossible for the offending to have occurred as alleged. According to the appeal submission:
No matter what view was taken of [A] as a witness, it was simply not open to the jury to accept his word beyond reasonable doubt. That is so because: (i) the combined evidence of the witnesses, with the sole exception of [A], if accepted, showed that the offending was impossible; and (ii) there was no rational reason to reject this evidence.[53]
mce-anchor64 Before the jury and again in this Court, each of these contentions was supported by detailed reference to the evidence given by A and by the opportunity witnesses. In pt II of this judgment, we review that evidence and the competing appeal submissions. Before doing so, it is appropriate that we express our general conclusions on the effect of the evidence. Although the contentions of falsity, improbability and impossibility were all directed at undermining A’s credibility and reliability, it is convenient to deal with each contention separately.
mce-anchorThe story was false
mce-anchor65 The defence in a criminal trial bears no onus at all. As a matter of forensic reality, however, a defendant faced with accusations from an apparently credible complainant will usually look to put before the jury reasons why the complainant’s account should be doubted. Identification of a motive to lie may suggest such a reason. As the High Court said in Palmer v The Queen (‘Palmer’
:
Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations.[54]
In the same case, McHugh J said:[55]
When a serious allegation is made against a person, one of the first inquiries most persons make in testing the truth of the allegation is to ask whether the person making the allegation has any motive for fabricating it. Any facts that suggest a motive are regarded as throwing light on the probability of the allegation being untrue.
mce-anchor66 In our experience, it is common in sexual assault trials for it to be put to the complainant in cross-examination that they had a reason to invent the allegations.[56] For example, where the alleged perpetrator was at the relevant time in a relationship with the complainant’s mother, it may be suggested by the defence that the complainant fabricated the allegations in order to break up the relationship.[57]
mce-anchor67 These realities are anticipated in the Evidence Act 2008(‘Evidence Act’, which makes admissible (as an exception to the credibility rule) evidence which ‘tends to prove that the witness ... is biased or has a motive for being untruthful’.[58] Provision is also made for the introduction of evidence of a prior consistent statement, if it is suggested that ‘evidence given by the witness has been fabricated or
truth cannot be changed to suit new ideas
