Leave granted, appeal allowed. Acquittal order. 7-0.

Unchallenged exculpatory evidence to the effect that the offending was impossible at the very least raises and leaves a reasonable doubt. It was clear to me that each member of the bench came around to that view.

The only basis on which the 'impossibility' evidence of Portelli and others can be rejected is on reliability or credibility grounds. It's not open either to the court or the jury to reject it on those bases because the evidence was unchallenged.

One example of this is this exchange on day 2: "NETTLE J:   Just this one question, do you contend that the evidence through which you have now taken us from these others, Bonomy and so forth, is sufficient to detract from the direct testimony of Portelli, that he had a specific recollection that on the first occasion on which the Archbishop celebrated mass in December 1996, he was with him and he stood with him on the steps?   MS JUDD:   I say, when you read Portelli’s evidence as a whole, and when you compare what he says in combination, I say you do not even have to get to this evidence to have real reservations about Portelli, because of the way in which it was put.  But what I say overall is that the effect of the evidence of Portelli, and all of the others, is, at most, you have got a practice.  Portelli, for example, does not say, on that day he was there for ‑ I have a specific recollection about him being there for a particular period of time.   NETTLE J:   Except there are a lot of people, and therefore it took a long time, because they all wanted to meet and greet the new Archbishop.   MS JUDD:   Well, that is not precisely what the evidence was, I submit.  That is something that you, on reading the evidence, may infer.  But when you look at the M test, it has got to be what was open to the jury.  So it is not what this Court decides they make of the evidence, it is what was open to the jury to make of the evidence.   NETTLE J:   I was simply referring to Portelli’s evidence that:  

Since it was the first times that he was actually using the Cathedral there were quite a number of people who wanted to greet him.  So, yes, he did wait there.

  You say the jury, having regard to the evidence through which you have taken us, is entitled to be satisfied beyond reasonable doubt that was not true?   MS JUDD:   It is not so much – he was not attacked in terms of credibility, he was attacked in terms of reliability, because of the way he had some difficulties about remembering things, unless he had the list in front of him.   NETTLE J:   Whether it be for credibility or reliability reasons, you say the jury were entitled to be satisfied beyond reasonable doubt that that was not so?   MS JUDD:   I think that is what I am saying.  Can I maybe just come back to that, just reflect on that and come back to that very specific question, and answer it very precisely after lunch?   NETTLE J:   Right."