Day Two: Click here to access Cardinal Pell testimony Day two (Transcript 26 March 2014)
Day Three: Click here to access Cardinal Pell testimony Day three (Transcript 27 March 2014)
Click her to access Cardinal George Pell statement for the Australian Commission of Inquiry
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ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE
Public Hearing – Case Study 8 (Day 60)
Level 17, Governor Macquarie Tower
Farrer Place, Sydney
On Monday, 24 March 2014 at 10am
Before the Chair: Justice Peter McClellan AM Before Commissioners: Professor Helen Milroy
Mr Andrew Murray
Counsel Assisting: Ms Gail Furness SC Mr Angus Stewart
1 THE CHAIR: Yes, Ms Furness.
2
3 MS FURNESS: Thank you, your Honour. I call
4 Cardinal Pell.
5
6 <GEORGE PELL, sworn: [10.05am]
7
8 <EXAMINATION BY MS FURNESS:
9
10 MS FURNESS: Q. Would you tell the Royal Commission your
11 full name and occupation?
12 A. My full name is George Pell. I am Emeritus Archbishop
13 of Sydney and my present position is I am Prefect for the
14 Secretariat of the Economy in the Vatican, in the Holy See.
15
16 Q. When do you take up that position, cardinal?
17 A. Next Monday.
18
19 Q. You have prepared two statements in relation to this
20 case study, cardinal?
21 A. Two statements? Yes, I have.
22
23 Q. The first statement is dated 24 February 2014. Do you
24 have a copy of that with you?
25 A. I do.
26
27 Q. Are there any amendments you wish to make to that
28 statement?
29 A. No.
30
31 Q. Are the contents true and correct?
32 A. Yes. In one or two cases, I will develop them, but
33 they’re true and correct as they are.
34
35 Q. True and correct and incomplete in one or two cases?
36 A. In one or two cases.
37
38 Q. What are those cases, cardinal?
39 A. That’s a good question.
40
41 Q. Perhaps if you could tell us the topics?
42 A. Yes. Pardon me, I’m just focusing. I’m sorry about
43 that. When you get a little bit older, sometimes things
44 come up slowly. Certainly, one of them is on the question
45 of the $20,000, $30,000 and the $100,000, and I’m just
46 trying to think of what the other one – yes, the other one
47 is about the amendments to the letter that Mr Davoren
1 drafted and which I amended. I think, having studied it
2 and studied it, I think I can explain why I amended them in
3 the way that I did, but my apologies for being a bit slow.
4
5 Q. Thank you, cardinal, we’ll come to both of those
6 matters.
7
8 MS FURNESS: I tender the statement.
9
10 THE CHAIR: That statement of February will be
11 exhibit 8-14.
12
13 EXHIBIT #8-14 STATEMENT OF GEORGE PELL DATED 24/2/2014
14
15 MS FURNESS: Q. Cardinal, you prepared a supplementary
16 statement dated 22 March 2014?
17 A. Yes.
18
19 Q. Are the contents of that true and correct?
20 A. Yes.
21
22 MS FURNESS: I tender that statement.
23
24 THE CHAIR: That will be exhibit 8-15.
25
26 EXHIBIT #8-15 Supplementary statement of George Pell
27 DATED 22/3/2014
28
29 MS FURNESS: Q. In relation to your first statement,
30 cardinal, who assisted you in the drafting of that
31 statement?
32 A. Gilbert+Tobin Lawyers and Richard McHugh.
33
34 Q. Paragraphs 152 to 155 of that statement relate to the
35 overall conduct of the litigation. Do you recall that?
36 A. Yes.
37
38 Q. The views you express in those paragraphs – were they
39 views that you expressed now or views that you held before
40 preparing your statement?
41 A. Some of them would represent views that I’ve long
42 held. Others were views that – judgments that I made when
43 I actually discovered what had happened.
44
45 Q. Did you prepare paragraphs 152 to 155 in association
46 with Mr McHugh?
47 A. I did, and I – yes, I did.
1
2 Q. If we can turn to, firstly, the question of an oath.
3 Were you or are you under any oath in respect of the
4 evidence you can give today?
5 A. Limiting what I might say?
6
7 Q. Affecting what you might say.
8 A. No, no, not at all.
9
10 Q. Have you relieved any person from any oath they might
11 think they are or were under in respect of evidence given
12 before this Royal Commission?
13 A. I think a couple of people might have mentioned it to
14 me, or quite correctly presumed that the law of the land
15 prevails.
16
17 Q. So it is the case, is it, that no-one within the
18 archdiocese is, to your knowledge, under an oath which
19 would affect the evidence they could give before this
20 Royal Commission?
21 A. Yes, no-one should be, and I don’t believe anybody is
22 in such a condition.
23
24 Q. Thank you, cardinal. Just turning to paragraphs 50 to
25 52 of your statement, if we could have that on the screen,
26 just to understand your background, cardinal. You were
27 ordained a Catholic priest for the Diocese of Ballarat on
28 16 December 1966?
29 A. That’s correct.
30
31 Q. Subsequently appointed an assistant priest in the
32 parishes of Swan Hill and Ballarat in the early 1970s
33 through to the early 1980s?
34 A. That’s right.
35
36 Q. Appointed as parish priest of Mentone in 1985?
37 A. Yes. Could I add one other important fact —
38
39 Q. Certainly.
40 A. — that isn’t there, I’m not too sure if it is, but
41 from 1974 to 1984, while I was a full-time academic, I was
42 director of the Aquinas Campus of the Institute of Catholic
43 Education for all that time and principal of the Institute
44 of Catholic Education at three campuses with a couple of
45 thousand students. It’s now part of ACU. So I helped out
46 at the weekends at Ballarat East, from 1974 to 1983, and
47 for half of 1984 I was still principal of the Institute of
1 Catholic Education, as well as being administrator of the
2 Bungaree parish. I just do that for questions of accuracy.
3
4 Q. And the ACU is the Australian Catholic University?
5 A. It wasn’t then. The Institute of Catholic Education
6 has now become the Victorian part of the Australian
7 Catholic University.
8
9 Q. You held the position of parish priest at Mentone
10 until 1996?
11 A. I did. I was titular parish priest, as auxiliary
12 bishop.
13
14 Q. On 16 July 1987, you were ordained as auxiliary bishop
15 of the Archdiocese of Melbourne?
16 A. I was.
17
18 Q. And you were installed as Archbishop of Melbourne on
19 16 August 1996?
20 A. Mmm-hmm.
21
22 Q. And on 10 May 2001, you were installed as the
23 Archbishop of Sydney; that’s right?
24 A. Correct.
25
26 Q. On 28 September 2003, you were elevated to the Sacred
27 College of Cardinals by announcement of Pope John Paul II?
28 A. Yes.
29
30 Q. As part of your work as an auxiliary bishop,
31 you attended meetings of the Australian Catholic Bishops
32 Conference?
33 A. I did.
34
35 Q. At paragraph 16 of your statement, you refer to having
36 been regularly involved as the bishops of Australia worked
37 to deal with “this scandal, these crimes”. Do you see that
38 in paragraph 16?
39 A. Yes.
40
41 Q. By “this scandal, these crimes”, are you referring to
42 sexual abuse of children by clergy?
43 A. Clergy and teachers and Catholic personnel.
44
45 Q. You refer to discussions at the Australian Catholic
46 Bishops Conference on this issue during your nine years as
47 auxiliary bishop. Do you see that?
1 A. Yes.
2
3 Q. I want to take you to some minutes of those meetings.
4 They can be put up on the screen, if you would prefer,
5 cardinal.
6
7 THE CHAIR: I think we should put them on the screen.
8
9 MS FURNESS: Q. The first is the November/December 1988
10 minutes, if we can have those up. If we can start at the
11 beginning, on the first page, do you see under “Attendance”
12 at this meeting of 28 November to 2 December 1988, if we
13 scroll down to the second-last name, that you were in
14 attendance?
15 A. Yes.
16
17 Q. Then if we can turn to the page with 1437 at the top,
18 the Ringtail reference, do you see there is a motion put:
19
20 That Conference establish a Special Issues
21 Committee on an interim basis for two years
22 to advise on matters relating to child
23 sexual abuse …
24
25 A. Yes, I do.
26
27 Q. And “the following Terms of Reference”. Can you help
28 us, cardinal, with why it was called a “Special Issues
29 Committee”?
30 A. I suppose, you know, “sexual abuse” is an ugly term,
31 and this was a euphemism. I wasn’t involved in devising
32 the terminology, but I would suggest that’s the answer.
33
34 Q. If we scroll down that page, various functions are set
35 out of that committee, including, third from the bottom:
36
37 To establish a protocol to be observed by
38 bishops and major superiors if an
39 accusation is made against a priest or
40 religious alleging criminal behaviour …
41
42 Do you see that?
43 A. Yes.
44
45 Q. And there are various other functions. That was the
46 first occasion, was it not, that the Australian Catholic
47 Bishops Conference passed a motion in respect of this
1 matter, that is, child sexual abuse?
2 A. To the best of my knowledge. I had only been there
3 for a year before that.
4
5 Q. If we can then turn to the minutes of the meeting of
6 April 1991, again, we’ll see scrolling down, cardinal, that
7 you were present. You’re the third-last name. Do you see
8 that?
9 A. I do.
10
11 Q. These minutes were of a meeting held on 23 to 30 April
12 1991. If we can turn to 1654, do you see the first motion
13 which was carried:
14
15 That the “Protocol for dealing with
16 allegations of Criminal Behaviour” as
17 amended … be accepted … and
18 implemented …
19
20 Do you see that?
21 A. I do.
22
23 Q. You voted in favour of that motion?
24 A. I did.
25
26 Q. That there be an annual review of the protocol?
27 A. Mmm-hmm.
28
29 Q. Secondly:
30
31 That the proposal presented by Catholic
32 Church Insurances Ltd for “Special Issues
33 Liability Insurance” … be implemented …
34
35 Do you see that?
36 A. Yes.
37
38 Q. You voted in favour of that motion as well?
39 A. I did.
40
41 Q. On the next occasion, July 1993, if we can have those
42 minutes on screen, you will see this was a meeting that was
43 held on 16 July to 22 July 1993, and if we can scroll down,
44 cardinal, we will see your name a dozen or so from the
45 bottom?
46 A. Mmm-hmm.
47
1 Q. On this occasion, reference was made to the special
2 issues subcommittee at page 1874. Do you see there that
3 the report was presented by Bishop Connors under the
4 heading “Sexual offences”? Do you see that, or just above
5 the heading?
6 A. I can’t see the reference to Bishop Connors.
7
8 Q. Above the heading “Sexual offences”, cardinal.
9 A. Yes, you’re correct, sorry.
10
11 Q. Then two motions were carried – the first, that the
12 statement “Sexual Offences and the Church” be released,
13 and, second, that the Special Issues Committee conduct
14 a consultation with interested persons and groups in
15 drafting a new protocol which will be presented to the
16 conference for approval at its next meeting?
17 A. Yes.
18
19 Q. Then there is a two-page document, which begins on the
20 next page, and that’s the statement referred to in the
21 motion, is it not?
22 A. I believe so.
23
24 Q. The first paragraph is:
25
26 The Catholic bishops of Australia … have
27 devoted considerable attention to recent
28 allegations of sexual offences on the part
29 of some clergy, religious and Church
30 workers.
31
32 You would have agreed with that proposition then, I take
33 it?
34 A. That’s correct.
35
36 Q. If we can scroll down to the end of that page, there
37 is reference to:
38
39 The bishops and leaders of religious
40 congregations have been developing
41 procedures for dealing with allegations of
42 sexual offences against minors and adults.
43
44 Again, that was something that you agreed with in 1993?
45 A. Mmm-hmm.
46
47 Q. And, indeed, there had been significant work done at
1 the national level at that time, hadn’t there, cardinal?
2 A. Yes, yes.
3
4 Q. The next minutes are April 1994, and again, you were
5 present at that meeting. If we can turn to page 1975, do
6 you see that first motion is:
7
8 That a new Bishops’ Committee of three be
9 established for “Special Issues”, and that
10 a more appropriate name be given to it.
11
12 Do you see that?
13 A. Yes.
14
15 Q. Do you remember that discussion about the need to
16 change the name?
17 A. Not in any particular detail, no.
18
19 Q. It doesn’t surprise you, given your earlier evidence
20 that it was euphemistic, to refer to it as
21 “special issues”?
22 A. Yes.
23
24 Q. If we can scroll down, we can see that the second
25 motion on the screen is:
26
27 That the new Committee be known as the
28 Bishops‘ Committee for Professional
29 Standards.
30
31 A. Yes.
32
33 Q. And then the motion below that:
34
35 That Fathers Brian Lucas and John Usher be
36 appointed as consultants …
37
38 A. Yes.
39
40 Q. You would have known by that stage that John Usher had
41 some expertise and interest in this area?
42 A. Absolutely.
43
44 Q. He subsequently became your chancellor?
45 A. He did.
46
47 Q. Is he still the chancellor of the archdiocese?
1 A. Very much so.
2
3 Q. You would recognise that his thoughts and concerns in
4 the area of child sexual abuse should be listened to
5 carefully?
6 A. Very much so, and I think generally he needs to be
7 listened to – he deserves to be listened to carefully. But
8 he also has a great gift to be able to bring consolation to
9 people who are suffering, to do it in a genuine way, that
10 they’re not off-put, and he’s helped many, many people.
11
12 Q. And he has done that by meeting with complainants very
13 early on in the process, hasn’t he?
14 A. He has.
15
16 Q. So that he can form a view himself as to what they’ve
17 suffered and what their needs might be?
18 A. I think that is correct.
19
20 Q. That’s an important part of the healing process, too,
21 cardinal, isn’t it?
22 A. Absolutely.
23
24 Q. If we can then turn to the November/December
25 1995 minutes, you were not present at this meeting,
26 cardinal. However, the minutes of it would have been
27 subsequently made available to you?
28 A. Yes.
29
30 Q. If we can turn to 2269, you will see that the
31 committee – that is, the professional standards committee –
32 distributed a draft of a document entitled “Sexual Abuse by
33 Priests and Religious: a Statement of Principles”?
34 A. Yes.
35
36 Q. And seeking comment and advice to be forwarded to
37 Bishop Robinson?
38 A. Mmm-hmm.
39
40 Q. Bishop Robinson at that time was playing a significant
41 role in relation to professional standards matters,
42 wasn’t he?
43 A. Very much so.
44
45 Q. Do you now recall whether you provided any comments
46 and advice on that document to Bishop Robinson?
47 A. I don’t think I did. I didn’t have responsibility in
1 Melbourne for that area.
2
3 Q. Who did?
4 A. I think the vicar general of the day.
5
6 Q. While not having responsibility, you would have been,
7 I take it, deeply interested in the contents of this
8 document and to make sure that it properly set out the
9 principles that the church should follow?
10 A. Yes.
11
12 Q. If we can turn to the last page, it is noted there
13 that a process had commenced for a review of the procedures
14 which are to be used?
15 A. Mmm-hmm.
16
17 Q. And, further, that arrangements are being made to meet
18 representatives from English speaking conferences dealing
19 with child sexual abuse?
20 A. Mmm-hmm.
21
22 Q. And finally, that Bishop Robinson, Father Usher and
23 Sister Ryan would conduct a workshop?
24 A. Mmm-hmm.
25
26 Q. And each of those, Bishop Robinson, Father Usher and
27 Sister Ryan, at this time were well regarded in this area,
28 weren’t they?
29 A. Absolutely.
30
31 THE CHAIR: Q. Cardinal, it’s clear from this statement
32 that by this stage the church in Australia was talking with
33 churches in other parts of the world in relation to these
34 issues; is that right?
35 A. That’s correct.
36
37 Q. Now, can you tell me at this stage, if you know, what
38 was the discussion, if any, between the Australian churches
39 and the Holy See about the issue?
40 A. Well, one, I don’t know. The congregation for the
41 clergy had responsibility in the area, and I don’t know
42 quite what level of conversation there was between this
43 group and him, the congregation for the clergy. One useful
44 I think piece of information is that the Roman
45 understanding of this, particularly perhaps on the part of
46 the cardinal in that congregation, was, we would say now,
47 way behind our understanding of the challenge.
1 | ||
2 | Q. | Way behind in what sense? |
3 | A. | It was inadequate. I think — |
4 | ||
5 | Q. | Well, again in what sense inadequate? |
6 | A. | It’s a little bit difficult to – the attitude of some |
7 people in the Vatican was that if accusations were being
8 made against priests, they were made exclusively or at
9 least predominantly by enemies of the church to make
10 trouble, and therefore they should be dealt with
11 sceptically. And I think there was more of an inclination
12 to give the benefit of the doubt to the defendant rather
13 than to listen seriously to the complaints.
14
15 I’m not quite sure when it happened – I think it was
16 quite a deal later, but there was a deputation of American
17 cardinals who came over, it was in the time of John Paul
18 II, and they explained vigorously to the Vatican that it
19 wasn’t just the enemies of the church who were doing this
20 for some political purpose, as the Nazis had done and
21 possibly the communists, but that in fact there were
22 genuine complaints, and good people, people who loved the
23 church were saying that it’s not being dealt with well
24 enough.
25
26 Q. Were there sentiments similar to those in the Vatican
27 at that time apparent in parts of the church in Australia –
28 that’s the early 1990s?
29 A. Not to anything like the same degree, I don’t think,
30 but it’s a little bit difficult to know what people think
31 on these issues unless they’re discussed directly or,
32 through incidents, they’re challenged on it, but I never
33 heard – I think in many ways the English-speaking world
34 made a significant contribution to the universal church in
35 this area, and I think even within the English-speaking
36 world, through the efforts of this committee and
37 Bishop Robinson, in dealing adequately with this, whatever
38 the deficiencies, I think we were ahead of some countries.
39
40 MS FURNESS: Q. Just turning to the minutes of the
41 April 1996 meeting of the Australian Catholic Bishops
42 Conference, again, you were present at this meeting,
43 cardinal; do you accept that?
44 A. Yes, yes, if that’s shown to be there.
45
46 Q. Yes. If we can then turn to page 2333 of those
47 minutes. While that is coming up, cardinal, the heading is
1 “Professional standards” and it notes that the conference
2 received the committee’s report, which was presented by
3 Bishop Robinson and consideration of the motions which
4 followed was preceded by a joint meeting on the topic with
5 40 leaders of religious institutes.
6 A. Mmm-hmm.
7
8 Q. Do you recall that meeting?
9 A. I certainly recall such a meeting. I’m not quite
10 sure – I’d have to see the minutes to recall what happened
11 at that meeting.
12
13 Q. Do you understand that consideration of the motions,
14 which we’ll come to, were preceded by that joint meeting
15 with those present as indicated?
16 A. Yes.
17
18 Q. If we could turn to the next page, which is 2334, the
19 principles and procedures which were the subject of motions
20 which were carried are set out. This was a significant
21 meeting, was it not, cardinal?
22 A. That’s correct.
23
24 Q. The first motion was:
25
26 That the Professional Standards Committee
27 … review and update its draft statement
28 of principles …
29
30 A. Yes.
31
32 Q. And update its draft document setting out the
33 procedures to be followed?
34 A. Mmm-hmm.
35
36 Q. And then, in doing so to:
37
38 … do all in its power to bring into
39 harmony the concerns of
40 complainants/victims and all proper and
41 appropriate measures for the defence of
42 claims before the courts and the fulfilment
43 of the Church’s civil obligations.
44
45 That is the third motion?
46 A. Yes.
47
1 Q. Then fourth, to commit themselves to making their
2 first priority a response to complainants and victims that
3 is both just and compassionate. Do you see that?
4 A. I do.
5
6 Q. The term “just and compassionate” flowed through to
7 subsequent editions of Towards Healing; do you recall that?
8 A. Mmm-hmm.
9
10 Q. And a further motion in respect of publishing
11 documents in the name of the conference, and then,
12 significantly, under number 84, the needs of the victims
13 and communities, which is on the next page, 2335, do you
14 see that the motion which was carried was:
15
16 That dioceses and religious institutes be
17 asked to engage professional and
18 independent persons to make a study of how
19 an incident of sexual abuse has been
20 handled in relation to the community in
21 which it occurred …
22
23 A. Yes.
24
25 Q.
26 … what lessons might be learned …
27
28 A. Mmm-hmm.
29
30 Q.
31 … what effects both the abuse and the
32 Church body’s response have had on the
33 community, and what the Church body might
34 now do to assist the community.
35
36 Do you see that?
37 A. Yes.
38
39 Q. They were not matters that had been done by the church
40 before then, were they, that is, engaging professional and
41 independent persons to conduct studies of that sort?
42 A. I couldn’t answer with certainty to that question, but
43 I suspect not, but those working parties might have
44 consulted such people.
45
46 Q. Might have consulted such people, but for this
47 conference to have asked that they engage professional and
1 independent persons to do such things suggests that this
2 was an endeavour that had not been sought to be achieved at
3 this level prior to 1996?
4 A. Yes, it certainly suggests that.
5
6 Q. Then further down, under 85:
7
8 That a committee be established to prepare
9 one or more Codes of Conduct …
10
11 Do you see that?
12 A. Very definitely.
13
14 Q. And that was the first time a code of conduct had been
15 established; is that right?
16 A. Yes.
17
18 Q. And over the page, motion (xi), to consult in relation
19 to those codes?
20 A. Mmm-hmm.
21
22 Q. And next, in (xii), to seek the advice of victims of
23 sexual abuse by priests or religious in preparing the code
24 or codes of conduct?
25 A. Mmm-hmm. Mmm-hmm. Yes.
26
27 Q. Then further, under 86, which is just beneath that on
28 the screen:
29
30 That the ACSWC …
31
32 Do you see that?
33 A. Yes.
34
35 Q. What is ACSWC?
36 A. Australian Catholic Social Welfare Commission.
37
38 Q. And Centacare be asked to coordinate a study of those
39 factors peculiar to the church?
40 A. Mmm-hmm.
41
42 Q. And that the study include literature, interviews
43 with experts, and the like?
44 A. Yes.
45
46 Q. And then over to the next page, motion (xv) is:
47
1 | That meetings be arranged through the | |
2 | counselling services of the Church in which | |
3 | bishops and religious leaders might meet | |
4 | with persons who have suffered sexual abuse | |
5 | at the hands of a priest or religious and | |
6 | hear directly of their stories, hurts, | |
7 | concerns and needs … | |
8 | ||
9 | Do y | ou see that? |
10 | A. | I do. |
11 | ||
12 | Q. | And that was carried? |
13 | A. | Mmm-hmm. |
14 | ||
15 | Q. | Did you, after this period – that is, after this |
16 motion was carried – yourself meet with persons who had
17 suffered sexual abuse in response to this motion?
18 A. Yes, I certainly did.
19
20 Q. And that was arranged through the counselling services
21 of the church?
22 A. Yes, I think you would say that, yes. It was
23 arranged, yes, through the people who were working in that
24 area, so it would not just be counselling, but they would
25 be helping the – yes.
26
27 Q. In April 1996 you were still the auxiliary bishop in
28 Melbourne?
29 A. I think so, yes.
30
31 Q. You were installed as the Archbishop of Melbourne in
32 August 1996, so some few months later?
33 A. Mmm-hmm.
34
35 Q. After you were installed as the Archbishop of
36 Melbourne on 16 August 1996, what did you do in respect of
37 that archdiocese concerning child sexual abuse by clergy
38 and religious?
39 A. I moved very vigorously to improve what was a chaotic
40 situation. There were very good people, principally
41 Monsignor Gerry Cudmore, who was the vicar general of the
42 diocese – he was running the diocese and he was also having
43 to deal with these procedures, with the help of some other
44 people, and I felt that that was manifestly not working.
45 I felt that I had a mandate, in the light of the previous
46 motions which we have read together, and they referred
47 there to a procedure or procedures – I felt there was no
1 impediment to setting out what we were doing together, and
2 by a combination of circumstances, a number of very good
3 suggestions were made to me. I canvassed those on a number
4 of occasions with a very, very high-level committee, and
5 within 100 days we had put together what is known as the
6 Melbourne Response.
7
8 Q. In your statement at paragraph 57, you say that in
9 light of the urgent need for an effective system to respond
10 to victims of abuse and the uncertainty at that stage about
11 initiatives for a national response, you took the steps
12 that you’ve just described. In fact, there had been
13 significant work done over a period of years at the
14 national level, hadn’t there?
15 A. Yes, and implicitly we – I drew on that and so did our
16 committee.
17
18 Q. When you say you “drew on that”, you obviously were
19 present at the meetings that we’ve discussed and
20 participated in the motions that were carried?
21 A. Mmm-hmm.
22
23 Q. You were aware, when you were installed as the
24 Archbishop of Melbourne, that the Towards Healing protocol
25 was very close to being published?
26 A. I’m not sure that’s accurate.
27
28 Q. Are you referring to your knowledge or when the
29 Towards Healing protocol was being published?
30 A. I don’t think there had been any decision taken as to
31 when it would be published. There was not unanimity in the
32 bishops conference about the nature of what should be
33 agreed, and it has even been suggested to me that by doing
34 what we did in Melbourne, it was a useful stimulant to the
35 conference to agree on a set of protocols.
36
37 Q. Did you consider, during the time you were a member of
38 the bishops conference prior to being the Archbishop of
39 Melbourne, that a national response was appropriate in
40 respect of the issue of child sexual abuse?
41 A. I in no sense ever regarded a single response as being
42 a high priority. I thought what was necessary was to deal
43 with the suffering of the victims in an effective way and
44 of course by acting the way we did, we were able to put
45 into practice a system, which began three or four or
46 five months before the national system began.
47
1 THE CHAIR: Q. Cardinal, you said there was a lack of
2 unanimity amongst the bishops. What were they not
3 unanimous about?
4 A. On the best way to go forward. Everybody agreed it
5 was a terrible problem, but —
6
7 Q. Again, can I ask you for the particulars? What do you
8 mean?
9 A. I can’t be – I’m afraid I can’t – well, I can give you
10 one thought that I have. I can’t be particular about
11 others, unfortunately. I was very keen that if there be an
12 inquiry, that it be manifestly independent of the church
13 authority, and that I think is one of the great advantages
14 of the Melbourne Response as against the slightly more
15 melded response of Towards Healing.
16
17 Q. We will, on a later occasion, discuss the
18 Melbourne Response in greater detail, but are you referring
19 there to the role of Mr O’Callaghan?
20 A. I’m referring to the role of the independent
21 commissioner, Mr O’Callaghan.
22
23 Q. Yes. You appreciate many people don’t see him as
24 independent, don’t you?
25 A. Yes, and I think that is most unfortunate and very
26 unjust to Mr O’Callaghan. He accepted 97 per cent of the
27 complaints that were placed before him. Never at any stage
28 did Archbishop Hart or myself in any way attempt to
29 influence him, and actually I feel very strongly for
30 Mr O’Callaghan and I very much regret that his integrity
31 has been impugned, if that’s happened.
32
33 Q. I understand that. You do appreciate that perceptions
34 are very important in areas such as this?
35 A. I certainly agree that perceptions are very important,
36 but perceptions can sometimes be quite wrong, and they need
37 to be corrected even though it’s an unpopular task.
38
39 MS FURNESS: Q. Just coming back to the lack of
40 unanimity issue, cardinal, the minutes I just took you
41 to —
42 A. Could I rudely interrupt? Probably it’s uncertainty
43 rather than lack of unanimity. I wouldn’t want to over –
44 they were united we had to do something. People were
45 uncertain what was the best thing to do.
46
47 Q. Referring, then, to the April 1996 minutes, and
1 perhaps if we could have 2334 on the screen, I took you to
2 this earlier, do you see the various motions – that there
3 be a statement of principles and a statement of procedures?
4 A. Mmm-hmm.
5
6 Q. If we can move to the bottom of that page, to the
7 fifth motion, that the conference authorises the
8 professional standards committee to publish those documents
9 in the name of the conference. Do you see that?
10 A. Yes.
11
12 Q. That was carried?
13 A. Mmm-hmm.
14
15 Q. That suggests, doesn’t it, that the conference was as
16 one in respect of the content of those two documents, that
17 is, the principles and procedures for dealing with
18 allegations of sexual assault?
19 A. I think that would be – I think that would be
20 premature. I’d obviously have to see what the facts of the
21 situation are, but my understanding is that there wasn’t
22 a comprehensive agreement on principles and procedures.
23
24 Q. So the motion of publishing the two documents in the
25 name of the conference doesn’t suggest that to you?
26 A. But they hadn’t been published. They were to do that,
27 and I don’t think they did that until later in the year,
28 after the Melbourne Response was established. I don’t –
29 that’s my – I’m not sure of that, but I think that’s the
30 case.
31
32 Q. Generally, there were two Australian Catholic Bishops
33 Conferences a year, in April and November of each year; is
34 that right?
35 A. Yes, yes.
36
37 Q. If we can come to the November minutes – I’ll come
38 back to the Melbourne Response in a moment, cardinal. You
39 were present at this meeting and you had been elevated in
40 the list of attendees, cardinal, to near the top?
41 A. Mmm-hmm.
42
43 Q. If we can turn to page 2416, “Professional Standards”
44 is the heading, you see, and it is noted that the
45 conference received the report presented by Bishop Connors,
46 and it was reported that the Towards Healing document of
47 principles and procedures had been approved by the national
1 committee. Do you see that?
2 A. I do see that, and I also note that it didn’t say when
3 this was done. It had been approved by the national
4 committee. Obviously it hadn’t been approved by the full
5 council.
6
7 Q. The full council?
8 A. Of the bishops, conference of the bishops, I should
9 say.
10
11 Q. This was the November meeting of the conference for
12 1996, was it not?
13 A. That’s correct.
14
15 Q. There were only two meetings a year?
16 A. That’s correct.
17
18 Q. This was the next meeting after the April meeting?
19 A. That’s correct.
20
21 Q. It was at this next meeting that Towards Healing was
22 approved; do you see that?
23 A. That’s correct.
24
25 Q. Then there is reference to a need for there to be
26 a footnote, that is, in respect of the Melbourne Response.
27 Do you see that?
28 A. I do.
29
30 Q. The Melbourne Response had been announced by you
31 I think just short of a month prior to this; is that right?
32 These minutes —
33 A. Yes, I’m not sure it was a month or more or less, but
34 certainly before.
35
36 Q. These minutes refer to a meeting of 27 November to
37 29 November, and I think the Melbourne Response was
38 launched on, was it 30 October?
39 A. That’s – it was an October date, mmm-hmm.
40
41 Q. So, as it were, by introducing yours in October had
42 the effect that Towards Healing, which was approved a few
43 weeks later, was not a national response?
44 A. That’s correct.
45
46 Q. It also had the effect, didn’t it, that you were able
47 to state correctly that the Melbourne Response was the
1 first of its kind?
2 A. Yes.
3
4 Q. And in developing the Melbourne Response, as you’ve
5 said, you drew heavily on the work that had been done
6 through the national bishops conference for years?
7 A. I certainly was mindful of it and drew on it, yes.
8
9 Q. Did you consult the professional standards committee
10 as to the content of the Melbourne Response?
11 A. I asked one of the Melbourne auxiliary bishops to
12 liaise with the national committee so that the two
13 approaches would be compatible. That was Bishop Peter
14 Connors. He wasn’t successful in that, because some people
15 were very much committed to having a singular response, but
16 as we noted when we went through the earlier
17 recommendations, there was an explicit reference to one or
18 more responses, and also at that stage the Jesuits order
19 did not endorse the national program.
20
21 THE CHAIR: Q. Cardinal, I understand a little of the
22 structure of the church in Australia, if I can call it
23 that, and you know a lot more about that than I do, but do
24 you understand that people who may not have the knowledge
25 that you have see the Roman Catholic Church in Australia
26 as, effectively, one organisation?
27 A. And I think that, with respect, is a grossly
28 misleading understanding.
29
30 Q. But do you accept that people outside the church see
31 it in that way?
32 A. Yes, and I’ve seen it as part of my task to regularly
33 correct that misunderstanding.
34
35 Q. Well, whether or not you’ve been successful I don’t
36 know, but do you see that to people looking at the church
37 from outside, they might see benefit in there being
38 a national response to an issue such as the abuse of
39 children by members of the church?
40 A. Yes, but I don’t think that is the prior question.
41 The prior question is to try to devise the best response or
42 the better response. I regarded it as – I mean, you might
43 extend your principle to have one response around the
44 world, but that’s not possible. I don’t – I can’t see any
45 detriment, significant, apart from perhaps image, in there
46 being a couple of responses.
47
1 Q. I’m not sure what the next diocese to Melbourne
2 Diocese is in Victoria. Is it Ballarat?
3 A. Yes, yes.
4
5 Q. Do you think that people looking in might see
6 a difficulty if the way someone who is abused by a priest
7 in Ballarat is dealt with differs from the way a person
8 abused by a priest in Melbourne is dealt with, because the
9 systems are different? Do you see that that might cause
10 people a difficulty?
11 A. I see it certainly might, but the important question
12 is whether the victims were dealt with justly in both
13 systems.
14
15 Q. We’ll come later to discuss the question of justice,
16 but if there’s a different outcome for the same form of
17 abuse and same damage, that would not be just, would it?
18 A. Well, if the damage was exactly the same, it wouldn’t
19 be just. It hasn’t been brought to my notice so far that
20 there were significantly different results for similar
21 offences. There very well might have been, but it’s not
22 a problem I’ve had to wrestle with.
23
24 Q. But it’s potentially a problem created if you have
25 different systems dealing with the same issue, isn’t it?
26 A. Yes, but there are State jurisdictions in the law,
27 there are different areas of law. I don’t think, because
28 there are different systems, that that’s any conclusive
29 argument against there being different approaches. And
30 obviously I wouldn’t have persisted or implemented the
31 Melbourne Response if I didn’t think it was better.
32
33 Q. Your comment, of course, accepts that people shouldn’t
34 see the church as one body in Australia?
35 A. Simply because it isn’t.
36
37 Q. Well, I understand what you say about that.
38
39 MS FURNESS: Q. Did you consult Bishop Robinson about
40 the content of the Melbourne Response?
41 A. No, but I did ask Bishop Connors, I sent my emissary,
42 but I didn’t – I don’t think I directly consulted with
43 Bishop Robinson.
44
45 Q. Who was your expert adviser or advisers?
46 A. Could I give you a little explanation of how the
47 system developed and then I’ll – who – and when I talked to
1 my advisers – perhaps – well, I’ll start with the advisers.
2
3 Q. Thank you, I would appreciate that, cardinal.
4 A. There were a number of people from our finance
5 council: Barry O’Callaghan, who was a senior partner,
6 I think, at Corrs; Ted Exell, who was our finance officer;
7 Jim Gobbo; Joseph Santamaria. There were other people, but
8 I’m struggling to list their names, some of whom would have
9 been from our finance council.
10
11 Q. Did you take expert advice from anyone in the welfare
12 area with experience with dealing with victims of sexual
13 abuse?
14 A. We certainly – probably the answer to that is not
15 sufficiently. We did that indirectly. Certainly, I was
16 vividly aware of what people like Monsignor Cudmore,
17 vicar general, and Helen Last were doing. I don’t think we
18 consulted or I, at least, consulted directly with them.
19
20 Q. You indicated earlier that the Jesuits stayed outside
21 of Towards Healing in the early days, but of course you
22 know they’re now within the Towards Healing umbrella,
23 don’t you?
24 A. Mmm-hmm.
25
26 Q. You referred earlier, in response to a question from
27 his Honour concerning data, as to the differences or
28 similarities between outcomes for people in similar
29 situations.
30 A. Yes.
31
32 Q. As the Royal Commission understands it, cardinal, the
33 data that has been kept has not been sufficiently uniform
34 to be able to form very firm views as to outcome,
35 particularly across dioceses and, more particularly,
36 between Towards Healing and the Melbourne Response. Would
37 you accept that?
38 A. Yes, I think it’s something which follows from the
39 nature of the church, because, see, we’re not like an
40 international corporation where you have a general manager
41 Asia, a manager Southeast Asia and a manager Australia.
42 The structure of the Catholic Church is unusual by modern
43 corporate standards, because it’s flat.
44
45 Q. But you do have a National Committee for Professional
46 Standards, don’t you?
47 A. We do. We do.
1
2 Q. And through that structure, it’s possible for data to
3 be collected in a way that enables it to be useful to those
4 interested in such things?
5 A. Yes, and I would encourage that to be done, but the
6 conference has no power to coerce an individual diocese who
7 chooses not to go in that direction.
8
9 Q. No, persuasion is available if coercion isn’t, isn’t
10 it, cardinal?
11 A. Yes, of course, and what you’re advocating is
12 certainly desirable.
13
14 Q. Another issue in respect of having different systems
15 in different States is, as you would be aware, there has
16 been concern expressed about the movement of priests from
17 one diocese or parish to another after adverse material was
18 known about them; you’re aware of that?
19 A. Mmm-hmm, yes.
20
21 Q. In the event of a national response through
22 Towards Healing, a consistent approach to that might be
23 more easily attained, do you think?
24 A. It might have been, but the general principles to be
25 applied were very, very clear.
26
27 THE CHAIR: Q. Cardinal, do you accept that priests have
28 been moved, with knowledge of allegations having been made
29 against them in one place, and moved to another without any
30 action being taken?
31 A. Unfortunately, that was the case. My understanding is
32 that at least since the middle 1990s, if that happened, it
33 would have been very much by way of exception.
34
35 MS FURNESS: Q. You took up the position of Archbishop
36 of Sydney in May 2001?
37 A. Mmm-hmm.
38
39 Q. Having had the experience of the Melbourne Response
40 for some years?
41 A. Mmm-hmm.
42
43 Q. Did you revisit, when you took up that position in
44 May 2001, whether there were features of the
45 Towards Healing process you wanted to change based on,
46 firstly, your establishment of the Melbourne Response and,
47 secondly, your experience with it?
1 A. I thought long and hard about introducing the
2 Melbourne-type response to Sydney because in some senses it
3 was superior. For example, it had established
4 a compensation panel, which doesn’t exist in the
5 Towards Healing. I had some reservations about the
6 independence of the Towards Healing, the investigations,
7 and two factors reassured me on this. One was that in New
8 South Wales, unlike Victoria, you had to report to the
9 police that an offence had taken place. The person being
10 accused had to be nominated, and if the victim did not want
11 to be nominated, their name wasn’t given, and I strongly
12 believe in that, that the rights of the victim should be
13 respected there.
14
15 So, barring legislation, if somebody came to a church
16 process and did not want their name to go forward, I would
17 certainly support that decision.
18
19 The second reassurance on the question of independence
20 was that for priests or teachers who continued to be
21 involved with young people, or might be, all these cases
22 had to be reported to the ombudsman, who would monitor
23 them. Once again, that wasn’t the case in Victoria, and
24 I think New South Wales was very usefully ahead of Victoria
25 in this matter and I think that that was a – the role of
26 the ombudsman is a very good insurance for everyone,
27 especially for the victims.
28
29 Q. You say in your statement, at paragraph 19, that you
30 decided to follow the Towards Healing procedures in 2001
31 because you were reassured by their basic adequacy.
32 A. Mmm-hmm.
33
34 Q. Do I take it that you weren’t assured of the work that
35 had been done to date, up to October 1996, as discussed and
36 expressed in the bishops conference as to what was likely
37 to be the result of those discussions?
38 A. I was uneasy. I hadn’t been involved in the area.
39 And, of course, as you put together something like the
40 Melbourne Response and talk to people and listen, you
41 become clearer and clearer, but I was – I think everybody
42 was uneasy about the situation, and they were increasingly
43 clear about the inadequacies of the situation before 1996.
44 That’s why there was this push to get protocols.
45
46 Q. The Towards Healing protocol, as you understood it
47 when you began as Archbishop of Sydney, involved the
1 receipt of a complaint —
2 A. Mmm-hmm.
3
4 Q. — which was similar to the Melbourne Response?
5 A. Mmm-hmm.
6
7 Q. It required that complaint to undergo a process of
8 assessment?
9 A. That’s correct.
10
11 Q. And that was similar to the Melbourne Response, in
12 that there was a process of investigation and assessment.
13 In Melbourne, that was done by a person engaged for that
14 purpose?
15 A. Mmm-hmm.
16
17 Q. And in the Towards Healing protocol, that was also
18 done by a person engaged for that purpose?
19 A. In a particular case, it was done by a variety of
20 persons.
21
22 Q. A variety of people. It wasn’t the same person?
23 A. No.
24
25 Q. But it was nevertheless a person engaged by the church
26 for the purpose of assessing a particular complaint?
27 A. Yes, and one of my concerns there was my fear that the
28 accuracy of those assessments varied. Now, in this Ellis
29 case, if we had had an accurate assessment from the start –
30 in other words, one that was validated by successive
31 examinations – the trajectory of the case certainly would
32 have been different. Where we finished up I don’t know,
33 but I think in my representations to Professor Parkinson,
34 I made a number of suggestions for improvements, but one of
35 them was to try to ensure that the quality of the first
36 assessment – well, ultimately, if it went to court, it
37 would be validated by the court.
38
39 Q. That’s in 2009 that you put those submissions in to
40 Professor Parkinson; that’s right?
41 A. Yes, I think it was one of them.
42
43 Q. Let’s come back to 2001, if we can.
44 A. Mmm-hmm.
45
46 THE CHAIR: Q. Before you do that, you speak about
47 “validated by successive assessments”. What do you mean?
1 A. Well, for example, if you take the Ellis case, in
2 a technical sense Mr Davoren’s recommendations on that
3 weren’t an assessment, although I believe they were. Then
4 Mr Eccleston was appointed as an assessor and made his –
5 which I accepted, and then the procedures were reviewed by
6 the national committee, and you might say that’s another
7 assessment.
8
9 Q. Not of Mr Ellis.
10 A. No, of the way the matters were handled.
11
12 Q. That’s right, but you were talking in the context of
13 an assessment, I assume, of the validity of the complaint?
14 A. No, I was talking primarily about how the complaint
15 was dealt with.
16
17 Q. That’s what I mean. The starting point for that, as
18 I understand you, cardinal, was that there be an
19 assessment, and then you said “an assessment that is
20 validated by subsequent assessments”. I want to understand
21 what it is that you’re talking about?
22 A. I have been trying to explain that.
23
24 MR GRAY: If I may respectfully assist? If your Honour
25 looks at the transcript, the evidence was slightly
26 different and might affect your Honour’s question.
27
28 THE CHAIR: Let’s have a look at it.
29
30 Q. I just want to make sure I understand what you’re
31 saying, you see. Yes, you see, you said:
32
33 Now, in this Ellis case, if we had had an
34 accurate assessment from the start – in
35 other words, one that was validated by
36 successive examinations – the trajectory of
37 the case certainly would have been
38 different.
39
40 I’d understood you to be talking about an assessment of the
41 validity of the complaint. Is that right?
42 A. That’s correct.
43
44 Q. Well, what do you mean, “an accurate assessment
45 validated by successive examinations”? What are you
46 talking about?
47 A. I’m talking about the successive and different
1 evaluations of Mr Ellis’s complaint that were made by
2 Mr Davoren and Mr Eccleston.
3
4 Q. Mr Eccleston was the person who made the assessment,
5 wasn’t he?
6 A. I’ve already explained that, that I believed that
7 Davoren had made an assessment. That was a mistaken view
8 of mine. Although he’d been told to appoint an assessor,
9 I didn’t advert to the fact that he hadn’t appointed an
10 assessor but had made recommendations to me.
11
12 THE CHAIR: We’ll come back to that in detail.
13
14 MS FURNESS: Q. Back to 2001, cardinal.
15 A. Mmm-hmm.
16
17 Q. So you understood that the broad process under
18 Towards Healing was receipt of a complaint, assessment of
19 the complaint, and if the truth of the complaint was
20 accepted by the church authority, then there would be
21 a process of facilitation?
22 A. Yes, I think that’s right.
23
24 Q. And the facilitation would be attended by
25 a facilitator appointed by the Professional Standards
26 Office, in consultation with others?
27 A. Mmm-hmm.
28
29 Q. And the church authority’s representative present, as
30 well as the complainant and various support people, if
31 desirable; that’s right?
32 A. I think that’s correct, yes.
33
34 Q. The facilitation had two components, one being
35 pastoral and the other meeting the needs of the
36 complainant, however they might be expressed?
37 A. Yes.
38
39 Q. In the event that those needs involved the payment of
40 money by the church authority or through some other means,
41 then there would be a deed of release signed by the
42 complainant. You understood that was the general process
43 when you began?
44 A. I think that’s correct.
45
46 Q. And you considered that general process to be
47 basically adequate?
1 A. I did.
2
3 Q. Just turning to another topic, cardinal, you have on
4 occasions expressed views in respect of what I might call
5 prevalence. Do you understand what I mean by prevalence?
6 A. Frequency of crimes, or something?
7
8 Q. Well, the prevalence of child sexual abuse allegations
9 by members of the clergy and religious in Australia or in
10 dioceses within Australia; do you understand that?
11 A. Mmm-hmm.
12
13 Q. You have on occasions expressed concern that these
14 numbers might be exaggerated and that they should be made
15 with proper reliable data?
16 A. I would certainly say they must be made accurately.
17 I wouldn’t say – I’m not – I can’t remember ever saying
18 that the numbers were exaggerated. What I probably did say
19 was that they were taken out of context and not compared to
20 the very significant number of offences that occur in other
21 institutions and the overwhelming majority of such offences
22 which occur outside institutions.
23
24 Q. Given your clear interest in this area for decades and
25 involvement leading up to Towards Healing and the Melbourne
26 Response and the evidence you’ve just given, what have you
27 done to understand the prevalence of child sexual abuse
28 within your church, that is, the Catholic Church?
29 A. Oh, I’ve studied and talked and thought about it for
30 years. I’ve met quite a number of victims. I’ve attended
31 public meetings with victims. I’ve tried to read the
32 literature. Of course, it’s a mighty issue for us because
33 it’s so contrary to what we should be about.
34
35 Q. Cardinal, you say “the very significant number of
36 offences and the overwhelming majority of such offences
37 which occur outside institutions”. What data do you point
38 to to support that evidence?
39 A. Well, there was a recent press report on this, and
40 I don’t think it’s contested anywhere, that about
41 80 per cent of these offences are committed outside
42 institutions. I’d have to – I couldn’t pull up chapter and
43 verse. But within the last few months, there was a press
44 report saying that 55 per cent of the offences of
45 paedophilia occurred in so-called blended families and
46 45 per cent occurred with natural parents. That’s quite
47 wrong, but that was the way the report was written, because
1 the sample of natural parents was eight or nine times as
2 great as the sample for the blended parents. So in other –
3 I think United States statistics, it’s four or five times,
4 I might be wrong on that, the rate of natural families as
5 distinct from blended families. I think, according to this
6 survey, it would have been eight or nine times, but that
7 did not appear in the press reports.
8
9 Q. Are you referring to the press reports of a published
10 data or survey, are you?
11 A. Yes, yes.
12
13 Q. Not the actual published data or survey itself?
14 A. I’m referring to the press reports and I’m – I might
15 have got my secretary to actually get hold of the report
16 and if there was – I can’t remember that directly, but from
17 somewhere reliable, I got accurate information about the
18 size of the samples.
19
20 Q. So somewhere reliable, but you can’t tell us where
21 that is at the moment?
22 A. Not with absolute certainty, but I think that I would
23 have got my secretary to access the actual report which was
24 the basis for the press account.
25
26 Q. Can you help us with the title of the report?
27 A. No, I can’t, but I can get that to you later today.
28
29 Q. Thank you. You know about the work that was done by
30 John Jay College in the United States which was published
31 in 2004?
32 A. I do, and I’ve read it. I don’t have a crystal-clear
33 recollection of it at all.
34
35 Q. If I can assist you, it was a report done of work done
36 for the United States Conference of Catholic Bishops. It
37 was a very significant piece of published work, but if
38 I can reduce it to a sentence, it found, as a result of its
39 significant work over some period of years, that 4 per cent
40 of priests and deacons in active ministry between 1950 and
41 2002 have been accused of the sexual abuse of a youth under
42 the age of 18 years.
43 A. Yes, I recall that.
44
45 Q. As you would know, cardinal, the Royal Commission has
46 sought data from Catholic Church Insurance, the
47 Professional Standards Office, as well as the Archdiocese
1 of Sydney in relation to allegations of child sexual abuse
2 against priests within the archdiocese, and that
3 information reveals that the earliest incidence of child
4 sexual abuse the subject of a complaint since your
5 appointment, so since March to May 2001, was alleged to
6 have occurred in 1952. Are you aware of that?
7 A. I knew that the accusations go back a long time, yes.
8 I couldn’t have said ’52.
9
10 Q. Next, the data shows that 55 ordained clerics within
11 the archdiocese have been the subject of a claim of child
12 sexual abuse, again in the same period of time, since March
13 2001. Now, is that a piece of information that you were
14 aware of?
15 A. I’m aware, but I’m also aware that, according to our
16 statistics, it’s inaccurate. I have the document and I’ll
17 be able to proffer it after the break, or I could obtain it
18 now, if you wanted it. I think there were 91 complaints,
19 but quite some of those were multiple complaints against
20 individuals, individual priests, so that rather than
21 55 priests, our information is that there were 29 priests
22 so accused.
23
24 Q. In the event there were multiple complaints against
25 individual priests, that might affect the number of
26 complainants, but it won’t affect the number of priests,
27 will it?
28 A. Yes, logically I think it does.
29
30 MS FURNESS: The information that the Royal Commission has
31 obtained has been obtained from the sources that I’ve
32 indicated. I call for any data that is inconsistent to the
33 data which has been produced to the Royal Commission by the
34 Archdiocese of Sydney, the Professional Standards Office or
35 Catholic Church Insurance.
36
37 THE CHAIR: Mr Gray?
38
39 MR GRAY: Your Honour, I will have inquiries made. These
40 are rather complicated concepts.
41
42 THE CHAIR: The cardinal suggests there is a document
43 here.
44
45 MR GRAY: If there is, at the morning tea break I will try
46 to find it. I don’t know where it is.
47
1 THE WITNESS: Your Honour, it is on the table in the room
2 where I was, I think, and it’s marked number 9. There’s
3 a list of documents there.
4
5 THE CHAIR: Do you want to pause or go on?
6
7 MS FURNESS: I’m happy to go on, your Honour.
8
9 Q. Just continuing with the data that has been received
10 from the institutions I’ve referred to, cardinal, the Royal
11 Commission has been told that about 842 priests have held
12 an appointment in the Sydney Archdiocese since 1952?
13 A. That would be accurate. I haven’t checked that.
14
15 Q. Assuming for the moment the figure of 55 priests that
16 I referred to earlier is accurate – and we’ll look at
17 whatever document it is that is produced —
18 A. Well, that would not be my assumption.
19
20 Q. I understand that. For the purposes of my question,
21 I’m asking you to make that assumption, cardinal. Would
22 you do that?
23 A. Mmm, certainly.
24
25 Q. So on the basis of that assumption, therefore
26 6.5 per cent of clerics who have held an appointment since
27 1952 have been the subject of a complaint of child sexual
28 abuse on or after the time that you became archbishop; you
29 would accept that as a mathematical matter?
30 A. Yes, I can’t do the maths just at the moment, but
31 that’s right.
32
33 Q. That data has been obtained and considered in respect
34 of your period of appointment as archbishop. You would
35 understand that if one was to look back before your
36 appointment, it must be the case that that 6.5 per cent is
37 the lowest possible number; do you accept that?
38 A. I’m not sure of the logic of that, because I know when
39 our stats nationally were being put together, I believe the
40 figure was around 4 or 5 per cent historically. I’m aware
41 also that the Sydney Archdiocese has had fewer of these
42 crimes than some other areas, so I would be surprised –
43 it’s not impossible, but I would be surprised if we were,
44 in the Sydney Archdiocese, 2 per cent higher than the
45 national average, if the national average is 4 or
46 5 per cent.
47
1 THE CHAIR: Q. Cardinal, you know that there’s a very
2 significant underreporting of sexual abuse in the
3 community, don’t you?
4 A. This is commonly alleged right across every
5 institution, and I think that’s correct.
6
7 Q. You also know that there will be a very significant
8 delay, longer for men than women, but a very significant
9 delay, in many people ever reporting their abuse?
10 A. Yes, I understand that, and to some extent that
11 continues, but the whole general atmosphere on this matter
12 has changed radically. We’re able to talk about it. The
13 parishes and schools encourage people to report their
14 problems, and they’re doing so. In quite a number of
15 cases, say, for example, in the schools, the incidents are
16 found not to be validated and to some extent they’re less
17 serious than others. But there is an enormous change of
18 atmosphere in the Catholic Church, and I think that is one
19 of the fruits of our consistent efforts for the last
20 18 years to wrestle with this problem.
21
22 Q. Thank you, cardinal. You know that we’ve spoken to
23 well over 1,000 people; you know that, don’t you?
24 A. Yes.
25
26 Q. And there are literally thousands more wanting to talk
27 to us.
28 A. Mmm-hmm.
29
30 Q. We are learning of the people who have never reported
31 their abuse before, and we’ll talk about that in due
32 course.
33 A. Good. I welcome your work there.
34
35 MS FURNESS: Q. Cardinal, you say:
36
37 In quite a number of cases, say, for
38 example, in the schools, the incidents are
39 found not to be validated …
40
41 What do you mean by that?
42 A. Well, I gather there’s a process and the accusation
43 was either insufficient or frivolous or —
44
45 Q. So what data do you have to support that statement in
46 respect of schools and the number of claims that have not
47 been validated?
1 A. The Catholic Education Office would certainly have
2 those claims.
3
4 Q. But that data must have been made available to you for
5 you to give that evidence, so what data do you have?
6 A. I don’t have the data. That’s my recollection. It
7 wasn’t asked for in this circumstance, but such data
8 I think is available.
9
10 MS FURNESS: Let me just press you, if I can, cardinal.
11 You’ve said:
12
13 In quite a number of cases, for example, in
14 the schools, the incidents are found not to
15 be validated …
16
17 I call for the data that supports that evidence.
18
19 THE CHAIR: Mr Gray —
20
21 THE WITNESS: Well, I —
22
23 THE CHAIR: Just a minute, cardinal.
24
25 Mr Gray, I assume you can take that on board?
26
27 MR GRAY: I’ll take that on notice, your Honour.
28
29 MS FURNESS: Q. Cardinal, you understand that
30 Monsignor Usher gave evidence last week to the Royal
31 Commission?
32 A. I do.
33
34 Q. He indicated that in his time as chancellor, he has
35 not disbelieved one person who has made a claim. Do you
36 understand that to be his evidence?
37 A. I do.
38
39 Q. Is that something that has come to your attention in
40 the archdiocese, that is, that all claims that have been
41 received and dealt with through Towards Healing in
42 Father Usher’s time have been believed?
43 A. I don’t think he said that – well, he might have, but
44 my own position is that you never disbelieve a complaint.
45 But then it has to be assessed to see just whether it is
46 valid and true and plausible. But the starting point must
47 never be that they are disbelieved, that the allegations
1 are taken very seriously and examined. I don’t think it’s
2 just to the person accused for automatically an accusation
3 to be accepted until there’s some sort of examination.
4
5 Q. I’ll come back to Father Usher’s evidence shortly,
6 cardinal. Between May 2001 and June 2002, which is when
7 Mr Ellis’s complaint was received, are you able to help us
8 as to how many complaints had come to your attention
9 through Towards Healing?
10 A. No, I can’t recall that.
11
12 Q. Do you remember now whether, when you read Mr Ellis’s
13 complaint, it was a new process for you, reading
14 a complaint, or it was a process that you had been through
15 a number of times before, since being installed as the
16 Archbishop of Sydney?
17 A. I’d be inclined to say – well, I can’t remember how
18 many instances there were. Certainly I would always, when
19 the things were reported, or sometimes the letters would be
20 to me – I can’t recall clearly, but certainly when any
21 accusation came in, I would examine it and then refer it
22 immediately to professional standards.
23
24 Q. In the event that complaints came firstly to the
25 Professional Standards Office, they would send them to you
26 when they were within the archdiocese?
27 A. Yes, yes.
28
29 Q. During the time that Mr Ellis’s complaint was being
30 dealt with by the archdiocese – that is, between June 2002
31 and July 2004 – the main people involved with the handling
32 of that complaint were, firstly, the chancellor at the
33 time, Monsignor Rayner?
34 A. Mmm-hmm.
35
36 Q. The director of the Professional Standards Office,
37 firstly, Mr Davoren?
38 A. Mmm-hmm.
39
40 Q. Followed by Mr Salmon from May 2003?
41 A. Mmm-hmm.
42
43 Q. And, to a lesser extent, your private secretary, who
44 from time to time became involved because of his position?
45 A. I’d put them in a different order. I think, first of
46 all, the matter was the responsibility of the Professional
47 Standards Office, and the professional standards officer is
1 not an employee – or, no, that’s not the word, but he does
2 not answer to me. He answers to the New South Wales
3 bishops and religious and he should be independent.
4 Obviously, the vicar general would be involved to some real
5 extent. And at this stage, though, I would not be sure how
6 much involvement there ever was from my personal secretary,
7 Dr Casey, at this stage.
8
9 Q. But you would accept there was some involvement of
10 him, based on the documents that you reviewed to prepare
11 your statement, cardinal; isn’t that right?
12 A. Yes, but on this particular stage of the proceedings,
13 I’m just not sure.
14
15 Q. In terms of the stage of the proceedings I’m asking
16 you about, it is the handling of the complaint within
17 Towards Healing from June 2002 to July 2004.
18 A. Well, that would primarily be the responsibility of
19 the Professional Standards Office, and I had a very
20 hands-off approach to that. I did not want to be accused
21 of interfering in that assessment.
22
23 Q. We’ll come to the detail of the handling of that
24 complaint. But from time to time during that two-year
25 period, any one of those three or four people would keep
26 you informed from time to time, depending upon their role
27 and your interest?
28 A. It’s very difficult to say what people would do. What
29 we have to ascertain is what they did. What is true at
30 that time – for some of that time, Mr Davoren was unwell;
31 he had a bypass. Mr Davoren is a very good man. He worked
32 hard to help the victims, but he was a muddler and
33 sometimes he wasn’t logical. And also I think, if I could
34 put a – I don’t think it’s a misleading brand – his
35 approach to these matters was pre-1996. He didn’t seem to
36 have a scrupulous understanding or commitment to exactly
37 following protocols.
38
39 Q. Was he in place when you became archbishop?
40 A. Yes, yes.
41
42 Q. Did you take any measures to have him removed from the
43 position in the time that you were archbishop?
44 A. I was very pleased when he retired through ill health.
45
46 Q. Of his own volition?
47 A. Of his own volition.
1
2 Q. It’s the case, isn’t it, that none of those – that is,
3 Monsignor Rayner, Mr Davoren or Mr Salmon or, indeed,
4 Dr Casey – was authorised in relation to a financial
5 delegation to make payments of money?
6 A. No, I don’t think that’s correct at all.
7
8 Q. Who of those people was authorised in relation to
9 a financial delegation to make payments of money?
10 A. The chancellor.
11
12 Q. And that was in relation to Towards Healing or in
13 other respects?
14 A. Certainly in relation to Towards Healing. In court
15 cases, sometimes the matter would be brought to me,
16 especially if the money that was being sought was way
17 beyond the prevailing norms.
18
19 Q. So in relation to the financial delegation, I take it,
20 being a financial delegation, that that was in writing?
21 A. The vicar general has – does not need delegated
22 authority. The canon law says that the vicar general has
23 authority of his own, like that of a bishop, except in
24 those areas which are precluded by his superior bishop. So
25 in no sense does a vicar general have to be delegated for
26 a specific task, and —
27
28 Q. Can I ask you the question again, cardinal. Is there
29 in writing a delegation to the vicar general in respect of
30 the payment of moneys to complainants going through the
31 Towards Healing process?
32 A. I don’t believe there’s any explicit authorisation
33 under that head, nor do I believe that it’s absolutely
34 necessary, because the accepted practice was that the
35 chancellor would deal with those things. As a matter of
36 interest, I can’t remember ever being asked my opinion on
37 how much money might be paid in reparation/compensation to
38 a Towards Healing victim. I’ve thought very carefully
39 about this. I’ve got no such recollection. And certainly
40 in Monsignor Usher’s time, he handled all those questions.
41
42 THE CHAIR: Q. Cardinal, you, as the head of the diocese
43 in Sydney, no doubt had an acute concern that people who
44 had survived abuse by clergy would be justly dealt with?
45 A. Absolutely.
46
47 Q. Do you say that that concern didn’t extend to knowing
1 about monetary negotiations for compensation and whether
2 those monetary amounts were adequate to meet a just need?
3 A. Until demonstrated otherwise, I had confidence in the
4 person who was doing the job. In many cases, they weren’t
5 enormous amounts of money. And I’m not a micro-manager.
6 It’s quite impossible in an archdiocese the size of mine –
7 or what mine was. I’m very confident that, for example,
8 Monsignor Usher handled these matters justly, and I can
9 scarcely remember a complaint about his work in this area.
10
11 MS FURNESS: Is that a convenient time, your Honour?
12
13 THE CHAIR: We’ll take the short adjournment.
14
15 SHORT ADJOURNMENT
16
17 MS FURNESS: Q. Cardinal, you gave evidence earlier –
18 and it will be found – in relation to your knowledge of
19 amounts of money that was offered in relation to
20 Towards Healing matters. My recollection is that your
21 evidence was specific to Mr Ellis’s complaint. Is that the
22 case, or was it more generally in relation to —
23 A. No, it was more generally.
24
25 Q. So in relation to all Towards Healing matters since
26 you began in May 2001; is that right?
27 A. Let me —
28
29 Q. Let me interrupt you, if I may, cardinal, because
30 I now have the transcript. Your answer was:
31
32 I can’t remember ever being asked my
33 opinion on how much money might be paid in
34 reparation/compensation to a Towards
35 Healing victim. I’ve thought very
36 carefully about this. I’ve got no such
37 recollection. And certainly in
38 Monsignor Usher’s time, he handled all
39 those questions.
40
41 Leaving aside Monsignor Usher’s time for the moment and
42 looking back to Monsignor Rayner’s time in that position,
43 and looking specifically in relation to Mr Ellis’s
44 complaint, can I indicate to you the evidence that has been
45 given thus far in respect of your involvement, and I’m sure
46 that you’re aware of each of these, cardinal.
47
1 Firstly, Mr Davoren – who was then director of the
2 Professional Standards Office and was in that position when
3 Mr Ellis made his complaint, up until about April or
4 May 2003 – gave evidence that the decision whether
5 a complainant should receive compensation was made by the
6 archbishop in every case. Now, is he wrong in the evidence
7 he gave?
8 A. I think he is. The presumption would be that I would
9 have to approve such figures, within a range, but I don’t
10 recall ever having a list of such figures. If I could –
11 I would – we have our finance committee meetings eight or
12 nine times a year, and often for special issues, as it was
13 called, we would have the amount we’d paid out. I didn’t
14 have a list of individual payments, and actually
15 some months ago I asked for that to be drawn up so that
16 I could see how much was going to individuals. That was
17 something that was left to the chancellor.
18
19 THE CHAIR: Q. Cardinal, you said, “The presumption
20 would be that I would have to approve such figures, within
21 a range.” What did you mean?
22 A. I was speaking imprecisely, because my thought is
23 imprecise. There was certainly no cap. I’m not quite sure
24 of the range of money offerings that Monsignor Usher would
25 have made and would have been accepted, and I can’t
26 remember any complaints I’ve received about the moneys that
27 Monsignor Usher allocated. And I might be mistaken – I’d
28 say $20,000 to $50,000, that that would have been – the
29 presumption would have been, and was, that that’s all okay.
30 But anyhow, I can’t remember being consulted on that and
31 I’ve thought carefully about it.
32
33 MS FURNESS: Q. Did you make a decision as to whether
34 a complainant should receive compensation, in respect of
35 Towards Healing complaints?
36 A. The presumption was that if there is a complaint —
37
38 Q. I’m sorry, let me start again. I’m not talking about
39 a presumption. I’m asking whether you made a decision as
40 to whether a complainant should receive compensation in
41 respect of Towards Healing complaints?
42 A. There was a general rule that if their complaint was
43 established, they would be paid something.
44
45 Q. The question is: did you make a decision as to
46 whether a complainant should receive compensation in
47 respect of Towards Healing complaints?
1 A. Not in individual cases, because my permission wasn’t
2 needed. That was given generally. That was the
3 presumption, and that was the fact of the way these matters
4 were conducted.
5
6 Q. Your private secretary, Dr Casey, has given evidence
7 that it was the role of the chancellor to discuss money
8 matters in relation to Towards Healing with you and to seek
9 instructions. Is Dr Casey wrong in the evidence he gave?
10 A. He’s partly complete. It is the role of the
11 chancellor to do that. It was very rarely done.
12
13 Q. When you say that he’s partly complete, he’s correct,
14 is he, in saying that the role of the chancellor was to
15 discuss money matters in relation to Towards Healing; is
16 that the accurate part?
17 A. No, no, that didn’t happen. Where he’s correct is
18 that the chancellor handles these things.
19
20 Q. Dr Casey also gave evidence that he agreed with the
21 proposition that considering your involvement – and we’ll
22 come to the detail of that – you would have sought
23 information about reparation discussions up to the
24 facilitation and that information would normally be
25 provided to you by the chancellor and the director of the
26 Professional Standards Office. Now, that was his opinion
27 as to the way in which matters were arranged. Is his
28 opinion wrong?
29 A. Yes, I don’t think it occurred like that.
30
31 Q. Dr Casey had been your private secretary in Melbourne;
32 is that right?
33 A. He had, mmm-hmm.
34
35 Q. And you brought him with you to Sydney?
36 A. Mmm-hmm.
37
38 Q. He has been your private secretary in Sydney since May
39 2001, up until perhaps last week?
40 A. Yes.
41
42 Q. He would know your arrangements very well, would he
43 not, cardinal?
44 A. Not – he is completely honest and completely reliable,
45 but he’s not the archbishop and he knows what he knows, and
46 there are some things that he didn’t know.
47
1 Q. Dr Casey also gave evidence that all matters requiring
2 instruction or concerning child sexual assault or abuse
3 would have been discussed with you. Is he wrong in that
4 view?
5 A. Could you repeat that? All?
6
7 Q. Significant matters were put to you and all matters
8 requiring instruction or concerning child sexual abuse or
9 assault would have been discussed with you?
10 A. All matters requiring discussion, instruction —
11
12 Q. Or concerning child sexual assault, was his evidence.
13 A. I think that’s a bit too universal.
14
15 Q. So he’s wrong there, is he?
16 A. Incomplete.
17
18 Q. Which part is right?
19 A. Sometimes these matters were discussed with me. On
20 many occasions they weren’t, because I’m not
21 a micro-manager, it’s impossible, and my practice was to
22 give people a job and to let them get on with it, and until
23 they established that they were mucking things up, that’s
24 exactly what I did. And I didn’t have complaints on these
25 scores, although I wasn’t regularly informed of the
26 particular amounts.
27
28 Q. Dr Casey also said that he would assume that
29 Monsignor Rayner and Monsignor Usher had to get
30 authorisation from the archbishop – that is, you – for
31 anything to do with amounts of money, but he wasn’t sure of
32 the arrangements that you had with them. Now, is his
33 assumption wrong?
34 A. It is.
35
36 Q. Monsignor Rayner has given evidence, cardinal, and his
37 evidence is that he received authorisation from you in
38 relation to the offers he made in respect of Mr Ellis’s
39 complaint; is that right?
40 A. He has made those allegations, yes.
41
42 Q. It’s not an allegation. It’s evidence he has given.
43 A. But it is not correct.
44
45 Q. So Monsignor Rayner is wrong in the evidence he gave?
46 A. I certainly did not participate in any extended
47 discussion on this matter. I certainly did not nominate
1 any amount of money. There’s a whole lot of things wrong
2 with the account. There was no cap. And the suggestion
3 that after a man has lost a job of $300,000 a year, I would
4 agree to offer him $5,000 extra by way of compensation
5 I regard as grotesque.
6
7 Q. Monsignor Rayner also gave evidence that the
8 decision-making process was that he would go to you and
9 discuss the amounts with you and agreement was reached with
10 you. Is he wrong in that regard?
11 A. Yes, he is.
12
13 Q. Mr Salmon, as you know, is the current director of the
14 Professional Standards Office.
15 A. Mmm-hmm.
16
17 Q. He gave evidence that he expected that you would have
18 had some knowledge of the $100,000 put forward by Mr Ellis.
19 Now, is he wrong in that regard?
20 A. He was.
21
22 Q. Coming back to the handling of Mr Ellis’s complaint,
23 on 7 June 2002 you read his complaint?
24 A. Mmm-hmm.
25
26 Q. That’s right?
27 A. Yes. I don’t know about the day, but, yes, I read his
28 complaint.
29
30 Q. Can I take you to that complaint. It’s behind tab 4.
31 Does that refresh your memory of the complaint that you
32 received, cardinal?
33 A. Yes, generally. Yes.
34
35 Q. You’ll see that Mr Ellis’s complaint, under the
36 heading of “Nature of complaint”, sets out that the
37 complaint is in relation to conduct that occurred on many
38 occasions over a period of years. Do you see that?
39 A. I do.
40
41 Q. Do you now recall receiving this complaint and reading
42 it, cardinal?
43 A. Yes, I think I do. I was certainly aware of the
44 general content, I think. I was aware of the content.
45 I can’t remember reading this particular page one way or
46 another.
47
1 Q. Perhaps we can have tab 6 on the screen first, and
2 we’ll come back to the complaint. Do you see this is
3 a letter to you from the Professional Standards Office on
4 5 June 2002?
5 A. Mmm-hmm.
6
7 Q. As we scroll up, it’s clear that you were given the
8 statement of complaint from Mr Ellis?
9 A. Mmm-hmm.
10
11 Q. Do you see there are some handwritten notes?
12 A. Yes.
13
14 Q. That reads “attached enclosed read by”, and is that
15 you, cardinal?
16 A. Yes, absolutely.
17
18 Q. “On 7 June 2002”?
19 A. Good. Yes.
20
21 Q. So do you accept that you read the complaint on 7 June
22 2002?
23 A. I do, yes. Yes. Yes.
24
25 Q. Coming back to the complaint itself, which is tab 4,
26 you’ve said in your statement that the complaint was
27 plainly very serious; do you recall that?
28 A. Mmm-hmm.
29
30 Q. Can I suggest to you that your view that it was
31 plainly very serious was formed because of a number of
32 aspects of complaint – firstly, looking at what’s on the
33 screen, that the conduct occurred on many occasions over
34 a period of years?
35 A. Mmm-hmm.
36
37 Q. And that over that period, Mr Ellis was an altar boy.
38 Do you see that?
39 A. Yes, yes.
40
41 Q. And the description of the sexual abuse indicates that
42 it escalated?
43 A. That’s correct.
44
45 Q. That the sexual abuse occurred at the presbytery?
46 A. Mmm-hmm.
47
1 Q. And also occurred in the bedroom of the priest?
2 A. Mmm-hmm.
3
4 Q. And further —
5
6 THE CHAIR: Q. Cardinal, when you say “mmm-hmm”, do you
7 mean you accept that, yes, that makes it serious?
8 A. Yes.
9
10 MS FURNESS: Q. That the priest gave Mr Ellis, then
11 a boy, alcohol?
12 A. Yes.
13
14 Q. And that he took him away on holidays with him?
15 A. Yes.
16
17 Q. Do you accept that each of those matters contributed
18 to, as you say, it being a plainly very serious complaint?
19 A. I do.
20
21 Q. You will see over the next page Mr Ellis sets out his
22 expectations, the second being that he would receive from
23 the church a personal acknowledgment of the wrong done to
24 him?
25 A. Yes.
26
27 Q. Thirdly, that Father Duggan will be confronted with
28 the complaint and will acknowledge the wrong done?
29 A. Mmm-hmm.
30
31 Q. And finally, the church will provide assistance and
32 support in addressing the effects of the abuse; do you see
33 that?
34 A. I do.
35
36 Q. So when you read this complaint on 7 June, you
37 understood what Mr Ellis’s expectations were, as set out in
38 this document?
39 A. I understood those four points, and of course things
40 developed beyond that, but I understand and saw those four
41 points.
42
43 Q. If we can turn to page 3, do you see there in the
44 first full paragraph Dr Ellis is telling you that he
45 commenced at the Marist Fathers Novitiate at Toongabbie?
46 A. Yes.
47
1 Q. You would have understood from that, would you not,
2 when you read it, that that indicated that spirituality was
3 important to Mr Ellis?
4 A. Of course.
5
6 Q. After reading the complaint on 7 June, over the next
7 few weeks you had a discussion with Mr Davoren about the
8 complaint, did you not?
9 A. Yes.
10
11 Q. Perhaps we could have tab 10 on the screen. This is
12 a letter from Mr Davoren on 15 July to Mr Ellis, telling
13 him, in the second paragraph, that he had discussed his
14 complaint with you. Do you see that?
15 A. Yes.
16
17 Q. You don’t doubt that that occurred, do you?
18 A. No.
19
20 Q. Going down that page, the third paragraph, Mr Davoren
21 is telling Mr Ellis that Father Duggan’s mental state had
22 deteriorated and that the next step is usually to appoint
23 an assessor. Just stopping there, you would accept that
24 the Towards Healing protocol at that stage said that the
25 next step was to appoint an assessor?
26 A. Certainly.
27
28 Q. Then he goes on to say:
29
30 I would like to discuss with you what we
31 might do now that it appears pointless to
32 have [Father Duggan] interviewed.
33
34 Now, you say in your statement that this shows
35 a misunderstanding by Mr Davoren; is that right?
36 A. That’s correct, yes.
37
38 Q. Because indeed there was no need to discuss anything
39 with Mr Ellis, was there? It should have just gone
40 straight to an assessment?
41 A. It should have gone to an assessment, yes.
42
43 Q. And that was Mr Davoren’s misunderstanding of the way
44 that the protocol worked then?
45 A. Yes.
46
47 THE CHAIR: Q. And the assessment was to be by someone
1 who was not Mr Davoren; is that right?
2 A. I didn’t – that’s certainly what should have happened.
3 I mistakenly thought that, in some sense, what Davoren was
4 doing was the assessment, but I was mistaken in that.
5
6 Q. You understood Towards Healing required someone other
7 than Mr Davoren to do the assessment, didn’t you?
8 A. I did, but I didn’t – the way things developed,
9 I followed Mr Davoren’s advice but I should have done
10 things differently. As a partial explanation – not
11 a partial —
12
13 Q. At the moment, I’m just interested in or concerned to
14 understand that you knew at the time that Towards Healing
15 required someone other than Mr Davoren to do the
16 assessment; is that right?
17 A. This had been – yes, this was stated quite explicitly
18 and the point was lost on me as we went ahead.
19
20 Q. Nevertheless, your understanding of Towards Healing
21 would lead you to the assumption that any assessment would
22 be done by someone other than Mr Davoren; correct?
23 A. That’s a correct understanding of Towards Healing.
24
25 Q. Yes, and that was your understanding at the time?
26 A. In a – yes, in a somewhat confused way, yes – but that
27 – yes.
28
29 Q. Was it a confused way or was that your understanding?
30 A. That’s a difficult question. If I’d been asked the
31 question, did there have to be an assessment, I would have
32 said yes. When Davoren didn’t appoint an assessor,
33 I didn’t advert to that fact.
34
35 Q. No, but nevertheless all of your dealings were on the
36 assumption that someone other than Mr Davoren would do the
37 assessment?
38 A. Yes. My assumption was that the procedures should be
39 followed.
40
41 MS FURNESS: Q. And that was consistent with your
42 experience in Melbourne, wasn’t it, that there was an
43 independent assessment done of the complaint?
44 A. Very much so.
45
46 Q. Towards Healing was no different in that respect,
47 leaving aside consistency as to who made the decision?
1 A. Yes, yes.
2
3 Q. Now, the next —
4 A. If I could – one difference from Melbourne is that
5 Mr O’Callaghan, in some ways, had the role both of
6 Mr Davoren and the assessor, because the complaints were
7 referred immediately to Mr O’Callaghan, the independent
8 commissioner, and he dealt with them. In the Towards
9 Healing, there is the intermediate person, for pastoral
10 reasons, who then hands it on to an assessor.
11
12 THE CHAIR: Q. In one sense that’s an advantage,
13 isn’t it, because the assessor is totally divorced
14 otherwise from the process?
15 A. Yes, I agree very much.
16
17 Q. I’m not sure I understand – was there a panel of
18 assessors who could be drawn upon to do this work at the
19 time?
20 A. I gather – I don’t know whether it was formally
21 a panel, but there was a list of such people, certainly.
22
23 MS FURNESS: Q. Another few weeks later, you agreed for
24 Mr Ellis to meet with Father Duggan, provided that
25 Father Duggan was reasonably able to participate; do you
26 recall that?
27 A. I do.
28
29 Q. And your agreement was necessary for that meeting,
30 wasn’t it?
31 A. Yes.
32
33 Q. Were you conscious, at the time you agreed that the
34 meeting should take place, that some months had passed
35 without an assessment being done?
36 A. No, not explicitly. I realised at some stage that
37 things were going very, very slowly, but I didn’t advert to
38 the fact that there hadn’t been a formal assessment.
39
40 Q. You were then on leave from 20 August to 13 October
41 2002?
42 A. Mmm-hmm.
43
44 Q. But shortly after you returned, and by 1 November
45 2002, you had sought Mr Davoren’s advice regarding there
46 being a meeting between Mr Ellis and Father Duggan because
47 it was now clear that he had dementia?
1 A. Yes.
2
3 THE CHAIR: Q. Cardinal, I’m sorry to do this, but
4 a number of times you’ve just gone “mmm-hmm”.
5 A. I’m sorry, I’ll try to do better.
6
7 Q. Should we understand you, whenever you do that, to be
8 saying yes?
9 A. I’ll try not to do it again. Yes.
10
11 Q. Just when we come back to look at the transcript —
12 A. Yes, surely, surely. I understand that.
13
14 MS FURNESS: Q. You were open to Mr Ellis meeting
15 Father Duggan. Can you now tell us what purpose you
16 thought such a meeting might achieve?
17 A. I wasn’t sure what it might achieve, but Mr Ellis
18 wanted it.
19
20 Q. A couple of weeks later – and we’re now at 19 November
21 2002 – Mr Ellis’s complaint was discussed at a bishops
22 meeting. Do you remember that?
23 A. Only vaguely.
24
25 Q. Perhaps if we can have tab 23 up on the screen. You
26 will see this is an email from Father Doherty to Mr Davoren
27 stating that the matter was discussed at the last bishops
28 meeting. Do you see that?
29 A. Yes, I do.
30
31 Q. Was it the case that complaints made were discussed at
32 bishops meetings as a matter of course?
33 A. Not as a matter of course.
34
35 Q. So there was something about Mr Ellis’s complaint that
36 took it out of the ordinary?
37 A. Well, it was out of the ordinary.
38
39 Q. What were the features that took it out of the
40 ordinary?
41 A. Well, it was dragging on; that the priest had
42 dementia; that – I’m not quite sure at what stage Davoren
43 was suggesting it couldn’t be established. We had to try
44 to – would it be helpful or not for the meeting to take
45 place? And I was keen to do the right thing.
46
47 Q. The fact that it was dragging on was, if I can
1 suggest, the fault of the Professional Standards Office,
2 not Mr Ellis, wasn’t it?
3 A. That’s right, and it was a surprise to me to read
4 Mr Ellis’s submission that the only time when there was
5 progress was when he pushed the office. I was totally
6 unaware of that.
7
8 Q. Why was it discussed at the bishops conference?
9 A. Because – I can only repeat what I’ve said before, so
10 that I could be clear on what was the best thing to do, and
11 it was already emerging as a muddle and I didn’t want to
12 make anything worse and we wanted to try to accommodate
13 Mr Ellis’s wish as much as that was appropriate to do.
14
15 THE CHAIR: Q. Cardinal, I think what you’re being asked
16 is rather than the matter just being discussed with you,
17 which could have happened, it was discussed at the bishops
18 conference. I think Ms Furness would like to know why it
19 took that course rather than just being discussed with you?
20 A. Oh, no, it’s not the bishops conference. It’s
21 a meeting of —
22
23 Q. Well, bishops meeting.
24 A. It’s a meeting of the Sydney bishops.
25
26 Q. I understand that; that’s what she’s asking you. You
27 see, the matter could have come straight to you, and you
28 alone —
29 A. Yes.
30
31 Q. — but it went to this bishops meeting, I’m sorry,
32 meeting.
33 A. That would indicate that I wasn’t quite sure what we
34 should be doing, and I would value their advice.
35
36 Q. So you would have directed it to go on to the agenda
37 for that meeting; is that right?
38 A. That’s correct, yes, and, for example, Bishop Cremin
39 was very, very good with people and I was interested in
40 hearing what he had to say, and I presume Bishop Robinson
41 was there, too, because right through, I was keen to do the
42 right thing, whatever errors I might have made.
43
44 MS FURNESS: Q. The email continues to say “GP” – and
45 I take it that’s you, cardinal?
46 A. Yes.
47
1 Q. “Wanted to get a briefing before he made any decision
2 about facilitation”.
3 A. Mmm-hmm.
4
5 Q. It was the case, wasn’t it, that it was your decision
6 as to whether to go, and if so when, to a facilitation?
7 A. It was my decision on the recommendation of the
8 Professional Standards Office, and my presumption was
9 overwhelmingly that I would follow any advice from the
10 Professional Standards Office and not interfere or differ
11 from what they recommended. I think even in the
12 professional standards – Towards Healing protocols, if you
13 don’t agree with what is recommended, you have to,
14 I believe, give reasons for not following the advice. So
15 I repeat, my overwhelming inclination would have been to do
16 exactly as I was asked.
17
18 Q. With respect, cardinal, this email suggests that
19 instead of just accepting the advice of Mr Davoren, you
20 wanted to discuss it with your bishops to get their advice,
21 that’s right, according to this email?
22 A. That’s correct.
23
24 Q. And you wanted to get a briefing before you made the
25 decision that you were going to take in respect of
26 facilitation?
27 A. Yes, and I think that is perfectly compatible with my
28 ambition to comply with the recommendations from the
29 Professional Standards Office, and I wanted the advice of
30 others as to whether we were heading in the right
31 direction.
32
33 Q. When you say you had an ambition to comply with the
34 recommendations from the Professional Standards Office,
35 surely you would have applied your own mind, cardinal, to
36 those recommendations and only acceded to them if you
37 thought they were sensible?
38 A. Yes, but the presumption in my mind was that they were
39 sensible and I would have needed very, very clear
40 indications that they were not sensible before I would have
41 been tempted to disagree with them.
42
43 Q. You’ve said in paragraph 75 of your statement that you
44 proceeded on the assumption that the director is
45 undertaking the process in a manner that is consistent with
46 the Towards Healing document, and then you say “unless
47 a recommendation from the director appeared to me to be
1 plainly wrong”. Do you see that in the last sentence of
2 paragraph 75 on the screen?
3 A. Yes.
4
5 Q. So it’s obvious, cardinal, as one would expect, that
6 you would apply your own mind, and if it appeared to you to
7 be plainly wrong, you wouldn’t accept it, would you?
8 A. That is correct.
9
10 Q. The next occasion is a few weeks later when you
11 received a letter from Mr Davoren, and if we can have
12 tab 25 on the screen. This is a letter you received dated
13 10 December 2002?
14 A. Yes.
15
16 Q. From Mr Davoren?
17 A. Yes.
18
19 Q. At this stage, you knew there hadn’t been an
20 assessment, didn’t you?
21 A. I hadn’t adverted to that at this stage.
22
23 Q. When you say you hadn’t adverted to it, did you know
24 or not know?
25 A. I thought Mr Davoren’s work was the assessment.
26
27 THE CHAIR: Q. But you knew that Towards Healing
28 required a person other than Mr Davoren to do the
29 assessment, didn’t you?
30 A. I did, and I was inconsistent in that, but I didn’t
31 advert to that fact at that stage.
32
33 MS FURNESS: Q. I’m sorry, I don’t understand what you
34 mean by “advert to that fact”, cardinal?
35 A. I didn’t realise that at that stage. I was simply
36 mistaken.
37
38 Q. You will see the first sentence of this letter is:
39
40 It is now clear the facts of this case can
41 never be satisfactorily clarified.
42
43 Do you see that?
44 A. I do.
45
46 Q. Now, that’s just plainly wrong, isn’t it?
47 A. That was not the recommendation of Davoren. I think
1 Davoren generally proceeded on the basis that some sort of
2 corroboration was necessary.
3
4 THE CHAIR: Q. No, but Cardinal Pell, you were asked
5 your view.
6
7 MS FURNESS: Q. That sentence is just plainly wrong?
8 A. In the light of present information, that’s correct.
9
10 THE CHAIR: Q. No, you’re being asked, back then?
11 A. No, of course I didn’t believe it was plainly wrong.
12 I wouldn’t have accepted it if I thought it was plainly
13 wrong.
14
15 MS FURNESS: Q. You accept it is now. You didn’t know
16 it to be then; is that right?
17 A. That’s correct.
18
19 Q. What information do you have now that you didn’t have
20 then?
21 A. Well, Mr Eccleston’s report, for a start.
22
23 Q. But that postdated it?
24 A. Of course.
25
26 Q. So in terms of the information that was available at
27 the time he wrote that letter, it was only Mr Davoren’s
28 assessment of Mr Ellis and his complaint, wasn’t it?
29 A. That’s correct.
30
31 Q. And you accept now that you misunderstood Mr Davoren’s
32 role in relation to the assessment process?
33 A. Yes.
34
35 Q. Continuing down, do you see the third sentence:
36
37 I note that the alleged events commenced
38 when he was under age and continued for
39 a period of some ten years.
40
41 A. Yes.
42
43 Q. Is that a fact that you had taken into account in
44 forming any view of Mr Ellis’s complaint?
45 A. I was told the fact that it continued after the age of
46 consent, if that’s the phrase, was legally irrelevant.
47
1 | Q. | Was it irrelevant for every purpose? |
2 | A. | So I was told. |
3 | ||
4 | Q. | What was your belief? |
5 | A. | My initial reaction was that, in some sense, it was |
6 relevant, but I was told very explicitly that it wasn’t and
7 that was it.
8
9 Q. In what sense did you believe it to be relevant?
10 A. Obviously, the original – the crimes that the priest
11 committed in foisting himself on a young boy – there’s no
12 ifs and buts about that, that’s plainly wrong. It’s
13 different from many other cases in as much as that conduct
14 continued for quite some time beyond the time when Mr Ellis
15 was a minor.
16
17 Q. But isn’t it the case that priests take a vow of
18 celibacy?
19 A. Of course.
20
21 Q. Isn’t it the case that what the priest did was wrong
22 after Mr Ellis attained adulthood?
23 A. Of course. Of course.
24
25 THE CHAIR: Q. Cardinal Pell, I’m not sure I’m
26 understanding. You have spoken, as have I, to many people
27 who have been victims of abuse by either a cleric or
28 another person when they’re under age.
29 A. Mmm-hmm.
30
31 Q. It’s not uncommon that the hold that the abuser has
32 over the abused enables that relationship to continue
33 beyond the point where the person achieves the age of
34 consent.
35 A. Yes.
36
37 Q. That would be your experience?
38 A. Yes, and I certainly don’t dispute that. I was asked
39 what my initial reaction was. I thought it was of some
40 significance. I didn’t dispute the gravity of the crime
41 early on, the way it contradicted the promises of celibacy
42 of the priest, and I was told quite explicitly it was
43 legally irrelevant and I accepted that.
44
45 Q. It would be the position, wouldn’t it, in your
46 experience, that if you are told that the relationship did
47 continue, it would make it more likely that if the person
1 alleged it started before they reached the age of consent,
2 that that was the fact, wouldn’t it?
3 A. That is correct.
4
5 Q. And given what you knew of Mr Ellis’s complaint and
6 his discussion about having been abused over a very
7 significant period of time, that made it almost, in your
8 experience, undoubtedly correct, didn’t it?
9 A. I would say so explicitly now, and I should have been
10 much more vigilant about the advice that was given to me
11 then, but my instinct, as I said, was unless an advice was
12 plainly wrong, and I think Mr Davoren had a general
13 requirement – that mightn’t be the correct word – for some
14 sort of corroboration, but the details as listed obviously
15 were persuasive.
16
17 Q. Cardinal, going back to the letter, as Ms Furness has
18 done – before I take you to it, can I ask you this, it
19 would be your experience that it’s very common that an
20 allegation of sexual abuse, when pursued in a criminal
21 court, has only the evidence of the abused person as far as
22 the prosecution is concerned; correct?
23 A. I wasn’t completely aware of that, but I take your
24 word for it, of course.
25
26 Q. Is it not your experience that, for obvious reasons,
27 abuse will occur in private where only the abused and the
28 abuser know that it has happened?
29 A. Yes, but very obviously also, people will talk about
30 that to somebody; there’s some contemporary witness,
31 somebody they’ve mentioned it to.
32
33 Q. I regret to tell you, cardinal, that’s very often not
34 the case. And you know that from your own experience with
35 people who have been abused by clerics, don’t you?
36 A. I wouldn’t have said what I did if I did know that.
37
38 Q. Well, you know that it’s very common that young people
39 who report abuse many years later say that they felt unable
40 to report the abuse to anyone because of the authority
41 position of the abuser?
42 A. Yes, that is correct.
43
44 Q. That’s correct, isn’t it?
45 A. Mmm, yes.
46
47 Q. So that what one could expect very commonly would be
1 that there would be no other person who could give evidence
2 that you would call corroborative of abuse which has
3 happened to a child?
4 A. Yes, that is correct.
5
6 Q. Then when we look at this letter, in the second
7 sentence:
8
9 It does not appear that Mr Ellis can
10 corroborate his version of events in such
11 a way that it would be possible to conclude
12 on the balance of probabilities that the
13 situation that he described did in fact
14 take place.
15
16 Now, as we just discussed, it was to be expected that there
17 would be many cases where there would be no other evidence
18 of the abuse other than the abused person’s account;
19 correct?
20 A. That’s my understanding.
21
22 Q. What that means is that in order to be satisfied that
23 the abuse has occurred, what you have to do is talk to the
24 person who alleges they were abused and see whether or not
25 their story is one that you can accept; correct?
26 A. That is correct. Now, my perhaps muddled ignorance on
27 this, failures in this area, is one reason why I was always
28 very keen for the assessor to have the appropriate legal
29 ability to assess accurately, so that when these points
30 were made, they would be correct.
31
32 Q. Then when we look at the first sentence:
33
34 It is now clear the facts of this case can
35 never be satisfactorily clarified.
36
37 That statement cannot be correct, can it, because, as we’ve
38 just agreed, in these circumstances what you do is talk to
39 the person who alleged they were abused?
40 A. And that had happened, and we agree that that first
41 sentence is incorrect.
42
43 MS FURNESS: Q. It hadn’t happened, had it, in terms of
44 speaking to Mr Ellis?
45 A. I would have thought that Davoren would have spoken
46 with Ellis by this time.
47
1 Q. I see. So your answer is in respect of Mr Davoren
2 having spoken with Mr Ellis?
3 A. Yes, yes.
4
5 Q. You said earlier that you were told that the
6 continuation of the abuse was irrelevant. Who told you
7 that?
8 A. I can’t remember, but some legal authority.
9
10 Q. So you were involved with someone with some legal
11 authority at this time, or is this a subsequent —
12 A. I can’t remember when.
13
14 Q. So it may well have been subsequent to the
15 Towards Healing complaint being dealt with?
16 A. Subsequent to the lodging of the Towards Healing
17 complaint, but fairly early on in the story, the sad story,
18 it was made very clear to me that it wasn’t relevant, for
19 all the reasons we’ve rehearsed here.
20
21 Q. Just coming back to the letter, what Mr Davoren is
22 saying to you is that he recommends that there not be
23 a meeting with Father Duggan, notwithstanding that he
24 recognised that might be a pastoral response that might be
25 of assistance to Mr Ellis. Do you see that in the second
26 paragraph?
27 A. Yes.
28
29 Q. And says that if Mr Ellis wants to meet with
30 Father Duggan, he can organise it himself?
31 A. Yes.
32
33 Q. And then suggesting to you that if you agree, it would
34 be better for the message to be communicated to Mr Ellis,
35 and we know that that message was, “We can’t do anything
36 more”?
37 A. That I’m not sure is exactly the message in that
38 letter. I think that letter concludes, “We cannot do
39 anything more towards that end”, which is to have the
40 matter satisfactorily clarified. I think that’s the case.
41
42 Q. Perhaps if we can have tab 26. Cardinal, this is the
43 letter that Mr Davoren sent to you as a draft?
44 A. Yes.
45
46 Q. You’re familiar with that letter, aren’t you?
47 A. I am. I am.
1
2 Q. If we can turn to the final paragraph, Mr Davoren
3 suggests that you consider saying words to the effect of:
4
5 I very much regret any hurt that you have
6 experienced, but under these circumstances
7 I do not see that there is anything the
8 Archdiocese can do to help you bring this
9 matter to some resolution.
10
11 A. I do.
12
13 Q. That letter came to you on or about 10 December;
14 that’s right?
15 A. Yes.
16
17 Q. You ultimately sent a letter to Mr Ellis on
18 23 December 2002, did you not?
19 A. Yes.
20
21 Q. The letter that you sent is behind tab 30, and if we
22 might have that on the screen. Just before we go to the
23 detail of that, cardinal, with draft letters coming to you
24 from the Professional Standards Office, who in your office,
25 if anyone, did you confer with in respect of the content of
26 those letters?
27 A. I would on occasion confer with Dr Casey, perhaps the
28 chancellor, but I would – a letter like this, I closely
29 examined myself.
30
31 Q. If I can have on the screen the tracked changes – to
32 make it clear, cardinal, the changes that were made to the
33 letter that you signed from the draft that was given to
34 you – you would have seen this or something similar, I take
35 it?
36 A. I have.
37
38 Q. Can you now say that the changes that were made you
39 take responsibility for?
40 A. I do.
41
42 Q. Thank you. If we can deal with the first paragraph,
43 you amend it by deleting “on the balance of probabilities”.
44 Can you tell us why?
45 A. No, I’m not clear why I did that, although
46 I understood that it was on the balance of probabilities.
47
1 Q. That was the test, as you knew it, wasn’t it?
2 A. Yes, yes.
3
4 Q. You’ll see that Mr Davoren had suggested, and I quote:
5
6 As you are aware this is not to suggest
7 that you are disbelieved, but that it has
8 become a matter of one person’s word
9 against another.
10
11 Do you see that?
12 A. I do.
13
14 Q. You deleted that?
15 A. I did.
16
17 Q. And replaced it with:
18
19 On the one hand, there is your allegation,
20 and on the other Father Duggan cannot
21 respond and we have no other record of
22 complaints of this kind against him.
23
24 Do you see that?
25 A. Correct.
26
27 Q. Why did you remove the reference to not suggesting
28 that Mr Ellis was disbelieved?
29 A. Because it’s plainly inconsistent with the conclusion.
30 If you say to somebody, “I’m not suggesting you are
31 disbelieved”, it means you are believing him, and the whole
32 point of this letter was to say the matter couldn’t be
33 resolved and I don’t like talking out of both sides of my
34 mouth, especially to a victim. So I wasn’t going to say,
35 in effect, that we believe Mr Ellis when the point of
36 Mr Davoren’s advice was that this couldn’t be established.
37
38 THE CHAIR: Q. And I take it you accepted the advice
39 and, therefore, you didn’t believe that Mr Ellis’s story
40 could be established; is that right?
41 A. That’s correct.
42
43 Q. You express it in the letter that that was the case
44 because Father Duggan couldn’t respond; do you see that?
45 A. I do.
46
47 Q. That’s not right, is it?
1 | A. | That was my belief at the time. |
2 | ||
3 | Q. | But it’s not right, is it? |
4 | A. | No, no, I concede now that it’s quite mistaken. |
5 |
6 MS FURNESS: Q. It’s mistaken because it’s plainly
7 inconsistent with the words of the protocol; isn’t that
8 right? Perhaps we can have the Towards Healing protocol
9 for December 2000, which is in the general tender bundle at
10 tab E. It’s on page 16. Just before we get to page 16, if
11 we can go back to the front cover, I take it you’re
12 familiar with this document?
13 A. Certainly.
14
15 Q. This is the document that was in place at the time of
16 Mr Ellis’s complaint; you understand that, cardinal?
17 A. Yes.
18
19 Q. Just turning back to page 16 now, moving down to
20 paragraph 40.4, can I tell you, cardinal, that this is the
21 assessment provisions of the protocol that were in place,
22 and do you see that 40.4 clearly says:
23
24 If the accused does not wish to cooperate
25 with the assessment, the assessment shall
26 still proceed and the assessors shall
27 endeavour to reach a conclusion concerning
28 the truth of the matter so that the Church
29 authority can make an appropriate response
30 to the complainant.
31
32 Do you see that?
33 A. I do.
34
35 Q. You weren’t sufficiently familiar with the protocol at
36 the time, were you, to understand that this was
37 a requirement; is that the case?
38 A. I believed that the assessment had been proceeding,
39 had proceeded and that Mr Davoren was proposing
40 a conclusion, and I regret my mistake on that matter.
41
42 THE CHAIR: Q. Cardinal, the letter that you ultimately
43 sent to Mr Ellis you would understand was a rejection of
44 any complaint or any response from the church under
45 Towards Healing; correct?
46 A. It was a rejection, in the sense that it said quite
47 clearly it could not be satisfactorily established.
1
2 Q. Did you not think that before you wrote such a letter,
3 or signed such a letter, you yourself should make sure that
4 it was right to reject the complaint?
5 A. Yes, I would, and I did, but my overwhelming
6 presumption was that if I got advice from the Professional
7 Standards Office, I followed it.
8
9 Q. But this was not a question of presumption. This was
10 a question, surely, of satisfying yourself that it was
11 right to reject a man’s complaint, which we’ve already
12 discussed was obviously a serious complaint?
13 A. I regret what I did. It was a mistake. To say that
14 something could not be satisfactorily established is one
15 form of rejection. It’s not a denial necessarily that it
16 took place.
17
18 MS FURNESS: Q. Can we perhaps have the tracked changes
19 letter back up on the screen. Do you see the final
20 paragraph says:
21
22 … a clear resolution of this matter is
23 not possible, but under the circumstances
24 I do not see that there is anything the
25 Archdiocese can do towards this end.
26
27 A. Which is the clear resolution of this matter.
28
29 Q. Well, any resolution. You’re not offering anything,
30 are you?
31 A. No, I’m sorry, a clear resolution of this matter is
32 what the letter says.
33
34 Q. But you weren’t offering anything to Mr Ellis, were
35 you?
36 A. I was not able to suggest any measure that would bring
37 greater clarity than what Mr Davoren proposed. Now, in
38 retrospect, that was a mistake.
39
40 THE CHAIR: Q. Well, cardinal, you could have asked him
41 whether there had been an assessor appointed and any view
42 that the assessor had, couldn’t you?
43 A. I didn’t, because that distinction was lost on me.
44
45 MS FURNESS: Q. Mr Ellis has given evidence that
46 receiving this letter was like a door slamming in his face.
47 Can you understand that, cardinal?
1 A. Yes, I can.
2
3 Q. That was the effect of the letter, wasn’t it?
4 A. Yes.
5
6 Q. Just coming back to the changes that were made, and
7 turning to the second paragraph, Mr Davoren had suggested
8 that there be reference to some peace of mind being
9 achieved. Do you see that? It’s in the second paragraph,
10 at the beginning, cardinal.
11 A. Yes, yes.
12
13 Q. What purpose were you achieving by removing that?
14 A. I can’t recall exactly, except I didn’t want to be
15 saying contradictory things. I didn’t want him to be
16 feeling that something was going to be done which wasn’t
17 going to be done. Obviously, I was keen for him to have
18 peace of mind, but I didn’t want to – I didn’t want to
19 mislead him.
20
21 Q. By suggesting that anything was going to be done for
22 him when it wasn’t?
23 A. If – yes, yes. If it couldn’t be done towards
24 clarifying – if we couldn’t clarify the situation, I didn’t
25 want to suggest to him that we were.
26
27 Q. In the last paragraph, Mr Davoren suggested:
28
29 I very much regret any hurt that you have
30 experienced …
31
32 Do you see that?
33 A. Yes.
34
35 Q. You didn’t share that view, and you limited your
36 statement of regret:
37
38 … that a clear resolution of this matter
39 is not possible …
40
41 A. I also felt that that was quite illogical, because if
42 hurt had been caused, that would indicate that the case was
43 believed, that the case was established. I didn’t think
44 that the letter could have it both ways. If the case
45 couldn’t be established, then the hurt couldn’t be
46 established. That was my reasoning. I was attempting to
47 be honest.
1
2 Q. Is it the case when you were archbishop, either at
3 Melbourne or here, you apologised to a victim, which I’m
4 sure you’ve done on many occasions —
5 A. Mmm-hmm.
6
7 Q. Who were you apologising for?
8 A. For – on behalf of the archdiocese, on behalf of
9 myself as head of the archdiocese.
10
11 Q. And what were you apologising in respect of – what
12 conduct or other thing were you apologising for?
13 A. If there had been failures in procedure, but this is
14 not a formal letter of apology.
15
16 Q. No, I’m interested in your view as to statements of
17 regret. In circumstances where you have offered an apology
18 to a victim, is it the case that you only offered apologies
19 or statements of regret where you believed their account?
20 A. Yes, and I would do that as a result of the procedures
21 that had been followed, so I wouldn’t check every case.
22
23 Q. When you made an apology in respect of a victim who
24 had been abused by a priest within your archdiocese, what
25 were you apologising for?
26 A. Well, the wrongdoing, for the hurt that had been
27 caused.
28
29 Q. So you were apologising for the wrongdoing of the
30 priest?
31 A. Yes.
32
33 Q. You were accepting responsibility for that wrongdoing
34 by expressing an apology for it; is that right?
35 A. We don’t accept the principle of vicarious
36 responsibility.
37
38 Q. I didn’t use the word “vicarious”, cardinal. I just
39 used the word “responsibility”?
40 A. No, but I am, in an attempt to reply to your question,
41 if I may.
42
43 Q. Certainly.
44 A. There are different levels of responsibility, and if
45 the procedures were wrong, if there had been negligence, if
46 the authorities had been informed and done nothing, there’s
47 a much greater responsibility. Because a person is an
1 official of the church, leaving aside the questions of
2 legal liability, I think it’s appropriate and necessary for
3 the bishop to acknowledge the wrongdoing done by such an
4 official.
5
6 THE CHAIR: Q. And that’s the church acknowledging – the
7 bishop acknowledging, on behalf of the diocese, is it?
8 A. That is correct.
9
10 Q. I take it you accept that responsibility because of
11 the way the church will be perceived by the abused and
12 other people?
13 A. I don’t proceed in any matters according to public
14 perceptions. I proceed in church matters according to what
15 is the nature of the church and what is right and proper in
16 a particular circumstance.
17
18 Q. Am I right in thinking that any parish priest will be
19 the priest of that parish as a result of appointment by the
20 archbishop or bishop of that diocese?
21 A. That is correct.
22
23 Q. Do you think, in that context, there’s any burden
24 placed upon the archbishop or bishop to apologise on behalf
25 of the church when that priest offends?
26 A. There are many different burdens, many different
27 levels of responsibility, and I’ve already answered that if
28 a parish priest has offended, it is appropriate and
29 necessary for me to apologise.
30
31 Q. Yes, I know, but what Ms Furness was seeking was, when
32 you do that, who, in your mind, are you apologising on
33 behalf of?
34 A. On behalf of the archdiocese.
35
36 MS FURNESS: Q. And you’re apologising for the conduct
37 of the offending priest?
38 A. Yes, which is contrary to all the teachings of Christ
39 and the church.
40
41 Q. And you’re apologising for the consequences of that
42 conduct on the person?
43 A. I am.
44
45 Q. You answered a question earlier in relation to those
46 who were responsible for aspects of the complaint handling
47 in relation to Mr Ellis concerning Mr Davoren, and you
1 described Mr Davoren as a muddler and that sometimes he
2 wasn’t logical. You also said his approach to these
3 matters was pre-1996 and he didn’t seem to have
4 a scrupulous understanding or commitment to exactly
5 following protocols. Do you see that?
6 A. I do.
7
8 Q. Was that a view that you formed during your time as
9 archbishop when he was the director?
10 A. Increasingly.
11
12 Q. At the time of this letter, December 2002, had you
13 formed that view?
14 A. No.
15
16 Q. Was this letter – that is, his draft and the
17 consequences – part of what caused you to form that view?
18 A. Probably.
19
20 Q. About a month later, on 20 January, a meeting took
21 place to discuss the letter that Mr Ellis had written in
22 response to your letter of 23 December and to discuss what
23 would happen next. If I can turn to tab 32, and we need to
24 turn to page 0028, it’s a string of emails. Perhaps if we
25 could have 0029 first. The first is from Michael Hill.
26 You understood he was an employee within the Professional
27 Standards Office?
28 A. Yes.
29
30 Q. And it’s with reference to a call from Mr Ellis and
31 his shock about receiving the letter on Christmas Eve?
32 A. Yes.
33
34 Q. And he sounded disappointed rather than angry – do you
35 see that?
36 A. Yes.
37
38 Q. And he says that even though there’s no point in
39 trying to interview Duggan, he would still like to proceed
40 with the Towards Healing process?
41 A. Yes.
42
43 Q. And he wanted a facilitated meeting with you or your
44 representative?
45 A. Yes.
46
47 Q. If we can then scroll back up the email to page 0028,
1 do you see at the bottom of that page there is an email
2 from Mr Cudmore, who was the assistant to the chancellor —
3 A. Yes.
4
5 Q. — to Dr Casey asking, “Is it possible to arrange
6 a meeting ASAP” with you; do you see that?
7 A. Yes.
8
9 Q. And that meeting ultimately occurred?
10 A. It didn’t occur with me.
11
12 Q. Well, the meeting with you in order to discuss what
13 would happen in respect of Mr Ellis’s letter occurred, did
14 it not?
15 A. I presume so.
16
17 Q. Then if we can scroll up, do you see by this email, it
18 had been decided that a facilitated meeting would be set up
19 between Mr Ellis and Bishop Cremin?
20 A. That is correct.
21
22 Q. Why did you not agree to attend a facilitated meeting
23 with Mr Ellis at this stage?
24 A. Because I have a general – I developed a general rule
25 that I myself would not participate in such meetings until
26 the cases were concluded because I had attended two or
27 three public meetings; I’d had a couple of occasions when
28 I had spoken before the conclusion of the process with
29 victims. There had been considerable misunderstandings on
30 those occasions, and I concluded it was much better to keep
31 out of it until the matter was over, so I would not provoke
32 misunderstandings or just add to the confusion.
33
34 THE CHAIR: Q. Did you think that Bishop Cremin could do
35 it better?
36 A. I did, very definitely.
37
38 MS FURNESS: Q. What did you mean by “concluded”? You
39 say that you wanted to stay out of it until the matters
40 were concluded. What did “conclusion” mean in respect of
41 Mr Ellis’s complaint?
42 A. When the whole process was concluded, then I would
43 speak with him, as I —
44
45 Q. So did you understand he was back in Towards Healing
46 at this stage?
47 A. I don’t think I ever understood that he was really out
1 of it.
2
3 Q. Notwithstanding the letter of 23 December?
|
4 A. Yes, but, I mean, if he – we said we couldn’t do
1 UPON RESUMPTION:
2
3 MS FURNESS: Q. Cardinal, before the luncheon
4 adjournment, I was asking you about a meeting on 20 January
5 2003. Can I now take you to a couple of weeks later, on
6 4 February 2003, and perhaps we could have tab 33A on the
7 screen. Cardinal, this is an email from Mr Davoren to,
8 among others, your private secretary, Dr Casey. If we can
9 scroll down, that’s your handwriting, I take it, cardinal?
10 A. It is.
11
12 Q. What are you indicating by having endorsed that
13 document?
14 A. I believe that I am in a general sort of agreement,
15 especially with the last, if I could just have a bit of
16 time to read it – certainly the last paragraph, and I think
17 if you could scroll back a little bit so I can have a look
18 at the first half, I think this is a passage where I felt
19 we were a little bit all over – Mr Davoren was a little bit
20 all over the place.
21
22 Q. It is an email of 3 February and Mr Davoren is saying
23 to a number of people, including ultimately yourself, that
24 he recommends – and do you see that’s in the fourth
|
25 paragraph?
1 Q. So there was that recommendation, and then two
2 paragraphs down there was a suggestion:
3
4 … that we seek to obtain a clear picture
5 of Duggan’s health …
6
7 A. Mmm-hmm. Yes.
8
9 Q. Just coming back to the recommendation, you knew at
10 this time, February 2003, that it was plainly wrong that
11 corroboration could only be obtained through the archives
12 revealing other complaints or Duggan making some admission,
13 didn’t you?
14 A. I accepted that line of reasoning at that time. I now
15 realise it’s quite wrong.
16
17 Q. You didn’t realise it at the time, cardinal?
18 A. No, I wouldn’t have said “Okay” if I did.
19
20 Q. From your understanding of the Melbourne Response and
21 Towards Healing, you understood that there could be an
22 assessment of the complaint regardless of the state of mind
23 of the priest, didn’t you?
24 A. In general terms, put like that, I certainly did.
25
26 Q. You also understood, didn’t you, that the absence of
27 any other complaints didn’t mean that one then disbelieved
28 the current complainant?
29 A. I believed that – the recommendation was that it could
30 not be satisfactorily established. That’s what I believed
31 at the time, and that is now an incorrect understanding.
32
33 THE CHAIR: Q. Cardinal, what did you think at the time
34 of the circumstance where the alleged abuser was dead and
35 there was nothing else in the archives to suggest that that
36 abuser had abused someone else; what did you think would be
37 the position then?
38 A. I think the evidence would have to be carefully
39 assessed. I refused – it’s only too easy, when somebody is
40 dead, just to accept everything that is said about them.
41 They haven’t got an opportunity to defend themselves. So
42 some people are tempted to say, “He’s dead. There’s an
43 accusation. It doesn’t matter.” I always was of a mind
44 that there should be some examination of the intrinsic
45 probability of the accusation, and, in most cases, that was
46 established.
47
1 Q. That was your view back then, was it?
2 A. I was always, right back from then, for various
3 reasons – if a person is accused, they’re innocent until
4 they’re proven guilty, and I think in fairness to the dead,
5 there must be some sort of intrinsic evidence, not
6 a disbelief, but just some sort of establishment of the
7 plausibility, likelihood of the accusation.
8
9 Q. If the person is dead and there’s no other record in
10 the archives, the way you do that is by speaking with the
11 person who makes the allegation, isn’t it?
12 A. That’s correct.
13
14 Q. And assessing whether or not they’re credible?
15 A. That’s correct.
16
17 Q. That was your view back in 2003 in relation to people
18 who were dead?
19 A. Yes.
20
21 Q. There’s no difference, is there, between that
22 situation and someone who unfortunately has dementia and
23 can’t speak?
24 A. That is correct.
25
26 Q. Why, then, wasn’t the same process the one to be
27 adopted in 2003, in your view?
28 A. Well, I think we did. There was no automatic
29 acceptance of the charge against Father Duggan. There was
30 an incorrect assessment of the evidence from Mr Ellis.
31 I regret that. I say that was wrong and Mr Davoren’s
32 estimate of the balance of probabilities was mistaken.
33
34 Q. This paragraph that Ms Furness has taken you to, “It
35 is my recommendation there not be a facilitated meeting”,
36 and so on, is based upon that false understanding of how
37 you establish that something may have occurred, isn’t it?
38 A. Yes.
39
40 Q. But you said “Okay” to it?
41 A. I did, not because I thought it was incorrect then.
42 I thought it was correct. It was my mistake. This is one
43 of the very few instances in my life where I was too
44 reverential. I gave too much of an onus of – I was much
45 too inclined to take at face value what was presented to me
46 because of the status of the person saying it to me, my
47 keenness not to muck up the procedures. Certainly in
1 retrospect now, I would look at this much, much more
2 thoroughly.
3
4 MS FURNESS: Q. But you say that it was your view then
5 that if somebody was dead and there was no corroboration,
6 then it would be difficult to accept a complaint?
7 A. To some extent, difficult, yes. It would depend on
8 the story and no contradictions in it, but not impossible.
9 Now, of course, I would be much more open to an
10 uncorroborated account.
11
12 Q. When you say “Now, of course”, what has occurred that
13 changed your view, cardinal?
14 A. First of all, Mr Eccleston’s assessment and then –
15 Mr Eccleston’s assessment, first of all, and then when
16 there was the review by the professional standards, they
17 pointed out all the faults that were made, and then later,
18 when the court case started, I was quite clear that we
19 couldn’t deny something that had been accepted. But that
20 comes later.
21
22 Q. It is the case, is it, that Mr Eccleston’s assessment
23 had an impact on you in terms of his reasoning and
24 conclusions?
25 A. That’s correct.
26
27 Q. Further on in February, on 20 February, there was
28 a discussion within the chancellor’s office, and if we can
29 have tab 37 on the screen, this email of 20 February
30 follows, cardinal, from your agreeing to there being an
31 assessment of Father Duggan’s state?
32 A. Yes.
33
34 Q. Do you see there that Mr Cudmore, who was
35 Father Doherty’s assistant, was going to draft a letter to
36 be run by yourself? Do you see that? I’m assuming that
37 “HG” refers to you, cardinal?
38 A. That is correct.
39
40 Q. You don’t doubt that that occurred, do you, that
41 a letter was drafted and run by you?
42 A. I don’t dispute it. I can’t particularly remember it.
43 I presume that it was.
44
45 Q. By May 2003, you had become aware that the result of
46 the assessment was that Father Duggan was incapacitated?
47 A. Yes.
1
2 Q. That’s right, isn’t it?
3 A. Yes.
4
5 Q. Monsignor Rayner has told the Royal Commission that he
6 was the person who told you that. You don’t doubt that, do
7 you?
8 A. No.
9
10 Q. At about the same time, there were discussions with
11 you about who held the power of attorney for Father Duggan
12 in order to make arrangements for the assessment to have
13 taken place?
14 A. That is correct.
15
16 Q. The next month, in June 2003, you approved the
17 appointment of Mr Eccleston as the assessor; that’s right?
18 A. Yes.
19
20 Q. So it had come to your attention by June, had it, that
21 what Mr Davoren had done was indeed not an assessment as
22 required in the protocol?
23 A. Yes.
24
25 Q. How did that come to your attention, cardinal?
26 A. I can’t recall exactly. I presume Michael Salmon
27 would have said so. I can’t recall.
28
29 Q. In the meantime, Mr Davoren had left and Mr Salmon had
30 taken over as director of professional standards?
31 A. As I was replying, I thought it was about that time.
32
33 Q. Your understanding is that Mr Salmon understood that
34 this fundamental process hadn’t occurred and put in train
35 for it to occur?
36 A. Exactly.
37
38 Q. Part of doing that was to seek your approval of the
39 person to be appointed as assessor?
40 A. That’s correct.
41
42 Q. And you gave that approval?
43 A. Yes.
44
45 Q. The next event was a couple of weeks later, on
46 2 July —
47
1 THE CHAIR: Q. I’m sorry, just pause for a moment. You
2 accept that your approval was sought of the appointment of
3 the assessor; is that right?
4 A. Yes. I don’t remember him exactly asking me, but
5 certainly.
6
7 Q. Do I take it that that was the procedure that was
8 normally followed?
9 A. Yes, it should have been followed. It was normally
10 followed in Towards Healing.
11
12 Q. I take it that you would then have been aware that
13 until you were asked about Mr Eccleston, no-one had
14 previously been appointed to do the assessment?
15 A. That is correct.
16
17 Q. So that the position must be that you knew there had
18 been no assessment?
19 A. Your Honour, I have answered this a number of times.
20
21 Q. Yes.
22 A. And that was – at this stage, I realised I had been in
23 error.
24
25 Q. But you must have known before; if you had never
26 approved the appointment of an assessor, you must have
27 known?
28 A. In an historical sequence, there are no “musts”.
29 I didn’t realise before, and I did realise when it was
30 pointed out to me. What I should have thought, what
31 I should have realised, was different from what I did.
32
33 Q. I take it that it is usual, when an assessment is
34 done, for there to be a written report?
35 A. That is correct.
36
37 Q. Did you ask for any written report from Mr Davoren?
38 A. I did not.
39
40 MS FURNESS: Q. You became aware at some stage, probably
41 in July, that a visit had occurred between Mr Ellis and
42 Father Duggan, accompanied by Monsignor Rayner?
43 A. Yes.
44
45 Q. Monsignor Rayner told you after that visit, didn’t he,
46 that he believed Mr Ellis’s account?
47 A. I’ve got no clear recollection of that, and so
1 I can’t – I can’t remember how that fits into the sequence.
2 Is this after Eccleston or before?
3
4 Q. This is before Mr Eccleston had reported and after he
5 had been appointed.
6 A. I can’t recall explicitly what Monsignor Rayner said
7 when. I do know subsequently from the documents that he
8 said a couple of things, but I don’t dispute if he claims
9 that. I just don’t recall it.
10
11 Q. So if Monsignor Rayner gave evidence that he told you,
12 you wouldn’t disagree with that evidence, would you?
13 A. That he told me that he – no, I wouldn’t disagree with
14 it, but I couldn’t confirm it.
15
16 Q. He told you that he believed Mr Ellis after that
17 visit?
18 A. That he?
19
20 Q. That he believed Mr Ellis after the visit with
21 Mr Ellis and Father Duggan?
22 A. I’m not disputing that evidence.
23
24 Q. The report from Mr Eccleston was received in November,
25 and if we can go to that document, which is at tab 66. You
26 received and read that report, did you not, cardinal?
27 A. Yes, I did.
28
29 Q. If we can turn to page 12 of the report, which is
30 0176, and if we can scroll to the bottom of that page,
31 after setting out the interview that Mr Eccleston had with
32 Mr Ellis, he then sets out a number of matters relevant to
33 his investigation. Do you see that the first matter at the
34 bottom of that page is that he determined that there were
35 no records kept of the names of altar boys?
36 A. Yes.
37
38 Q. Do you see that?
39 A. Yes.
40
41 Q. But he had confirmed that Father Duggan was at Christ
42 the King Parish?
43 A. Yes.
44
45 Q. The parish where Mr Ellis said he had been abused?
46 A. Yes.
47
1 Q. Could we turn to the next page. You can see about
2 five paragraphs down, Mr Eccleston refers also to
3 a reference Mr Ellis submitted, written by Father Duggan,
4 which clearly indicated that Father Duggan had known
5 Mr Ellis for five years?
6 A. Yes.
7
8 Q. Then Mr Ellis submitted a copy of an inscription he
9 says was handwritten by Father Duggan in the front of
10 a bible that Father Duggan had given him. Do you see that?
11 A. Yes.
12
13 Q. Do you know Latin, cardinal?
14 A. I do. I do. I hope I pass.
15
16 Q. I certainly won’t be competing with you, cardinal. It
17 is in tab 1. Perhaps we can make that a little larger.
18 A. Could you drop it down a bit?
19
20 Q. Perhaps we can see if we can make it clearer.
21 A. “May the joy and” – would you like me to translate it?
22
23 Q. Yes, I would. Thank you.
24 A.
25 May the joy of life, light of the
26 Holy Spirit keep your heart in peace all
27 the days of your life, and before God
28 always I’m your dearest friend.
29
30 Q. Thank you, cardinal. Can I show you a transcription
31 that the Royal Commission has obtained. It has come up on
32 the screen.
33 A. Yes, yes.
34
35 Q. Do you accept that that is an accurate transcription
36 of what you have just —
37 A. I think it’s substantially the same as what I said –
38 a bit better expressed.
39
40 Q. Do you see reference to “your dearest beloved friend”?
41 A. Yes.
42
43 Q. Would that have caused you concern, reading that, as
44 something that a priest had written to an altar boy?
45 A. Yes.
46
47 MS FURNESS: I tender the transcript.
1
2 THE CHAIR: It will be exhibit 8-16.
3
4 EXHIBIT #8-16 TRANSCRIPTION OF HANDWRITTEN LATIN
5 INSCRIPTION BY FATHER DUGGAN
6
7 MS FURNESS: Q. Coming back to Mr Eccleston’s report at
8 tab 66, in the second-last paragraph of that page, there’s
9 reference there, do you see, to Mr Ellis having sought
10 professional counselling from 2000 and having made
11 disclosures to two counsellors?
12 A. Yes.
13
14 Q. And that the assessor, Mr Eccleston, had obtained
15 reports from each of those counsellors?
16 A. Yes.
17
18 Q. And then further, over the second page, which is the
19 next page, 0178, there’s reference to what the counsellors
20 said, and do you see that the first counsellor is quoted at
21 the top as saying:
22
23 It is my opinion that many of the feelings
24 and behaviours reported by Mr Ellis are
25 consistent with adult survival of child
26 sexual assault.
27
28 A. Yes.
29
30 Q. Mr Murray, the second counsellor, also refers to his
31 view. Do you see that?
32 A. Yes.
33
34 Q. Then the next piece of information that the assessor
35 had obtained was an extract from a survey report from
36 Mr Ellis, and that’s about halfway down the page, if we can
37 scroll down. That’s in relation to Mr Ellis’s skills in
38 terms of his interpersonal skills, although it has been
39 redacted, in detail, but it is certainly, as you can see,
40 the partnership report on how some of Mr Ellis’s peers and
41 staff think of him. Do you see that?
42 A. I do.
43
44 Q. Then finally, the assessor refers to biographical
45 details provided by Mr Ellis?
46 A. Yes.
47
1 Q. That is reference to a very intelligent man, who has
2 had one, possibly two, failed marriages, and then reaching
3 a high level in his careers?
4 A. Yes.
5
6 Q. And then dealing with the rest of his view in relation
7 to his careers and study. Do you see that?
8 A. Yes.
9
10 Q. Then over the next page is the assessment. Having
11 obtained the various pieces of information I’ve taken you
12 to, Mr Eccleston states whether or not there are grounds
13 for concluding on the balance of probabilities that the
14 complaint is justified?
15 A. Yes.
16
17 Q. And do you see that Mr Eccleston notes that
18 Father Duggan was not able and not capable of providing
19 a response?
20 A. I do.
21
22 Q. So the assessor clearly took that into account in
23 coming to his view?
24 A. That’s correct.
25
26 Q. Then do you see there is reference there to:
27
28 The allegations are very serious being
29 criminal in nature and as such require a
30 proof close to or approaching “beyond
31 reasonable doubt”.
32
33 A. I do.
34
35 Q. When you read that, cardinal, what did that mean to
36 you?
37 A. The consequence was that I accepted Mr Eccleston’s
38 conclusions and that the earlier conclusions from
39 Mr Davoren were not correct.
40
41 THE CHAIR: Q. You’re not quite being asked that,
42 cardinal. You’re being asked what did you understand from
43 that sentence?
44
45 The allegations are very serious being
46 criminal in nature and as such require a
47 proof close to or approaching “beyond
1 reasonable doubt”.
2
3 What did you understand from that sentence?
4 A. I understood that we’re talking about criminal
5 activity and that it was going beyond – it needs proof
6 beyond the balance of probabilities to something close to
7 or approaching beyond reasonable doubt; in other words,
8 that he was quite clear in his mind that these events had
9 occurred.
10
11 MS FURNESS: Q. He set out the reasons or the basis for
12 coming to that view in his report, didn’t he?
13 A. He did.
14
15 Q. So that the reader could look at each piece of
16 evidence to understand how he had reached the view?
17 A. Yes.
18
19 Q. There’s then reference to:
20
21 The level of proof … relies upon
22 Mr Ellis’s statement and corroboration of
23 his disclosure … made to counsellors some
24 23 years later.
25
26 Do you see that?
27 A. I do.
28
29 Q. Do you recall earlier an exchange with his Honour in
30 respect of when people report, and do you see that in this
31 case it was 23 years later?
32 A. Yes, I accepted – I accept his Honour’s reasoning.
33
34 Q. And this assessment knew that and nevertheless came to
35 the conclusion that it did?
36 A. Yes.
37
38 Q. Further in that paragraph, the assessor notes that:
39
40 The counsellors’ reports indicate that the
41 symptoms displayed … are consistent with
42 the adult trauma of child sexual assault.
43 Based on the available evidence it is more
44 likely than not that the allegations as
45 alleged occurred.
46
47 A. Yes.
1
2 Q. Could we scroll down. There is reference to
3 Father Duggan being unavailable. Do you see that?
4 A. Yes.
5
6 Q. Could we scroll to the next page. He was asked:
7
8 Are there any other matters that came to
9 your notice that could have some bearing on
10 the final determination of this matter?
11 What are those matters?
12
13 His response is:
14
15 All available information is contained in
16 this report.
17
18 A. Yes.
19
20 Q. Then the conclusion is as indicated, that the sexual
21 conduct from age 14 to 17 and continuing on into his young
22 adult years more likely than not occurred and the impact
23 has more likely than not adversely affected Mr Ellis with
24 regard to his mental, emotional and physical health.
25 A. Yes.
26
27 Q. You understood all of that when you read the report in
28 November 2003?
29 A. I did.
30
31 Q. It must have struck you, cardinal, in reading that
32 report, how different it was from the various
33 communications from Mr Davoren to you over the preceding
34 period, June 2002 to May 2003?
35 A. It did.
36
37 Q. What did that cause you to reflect?
38 A. That Mr Davoren’s recommendations were not adequate,
39 not correct.
40
41 Q. It shows, doesn’t it, from Mr Davoren, a fundamental
42 misunderstanding of, firstly, the process of Towards
43 Healing; would you agree with that?
44 A. Unfortunately, yes.
45
46 Q. And also a fundamental misunderstanding of how child
47 sexual abuse affects people and affects when and to whom
1 they report?
2 A. That’s correct.
3
4 Q. Did that understanding in November 2003 cause you to
5 implement any changes in respect of the Professional
6 Standards Office to the extent that you could?
7 A. I think Mr Salmon had come on board by then, and I had
8 a lot of confidence, and still do, in Mr Salmon, and I’m
9 not – was it in 2003, later, that Mr Davoren finished, or
10 did he go for a while?
11
12 Q. Mr Davoren finished, the evidence reveals, in about
13 April 2003, and Mr Salmon began about then or early May
14 2003?
15 A. Yes. Well, then, I had become increasingly
16 disenchanted – that’s not quite the correct word – with
17 Mr Davoren, so I was delighted that Mr Salmon was on board,
18 and I think he has done and continues to do an excellent
19 job, and he started to unravel – not to unravel – yes, to
20 unravel the mess in which we – where we were in this case.
21
22 Q. Did you take any particular steps to satisfy yourself
23 that Mr Salmon had an appropriate understanding of the
24 Towards Healing protocol and, indeed, of the effect of
25 child sexual abuse on survivors?
26 A. From my regular interaction with him, I understood and
27 accepted that, and in speaking with other people who were
28 working with him, my high estimate of his abilities was
29 confirmed by them.
30
31 Q. Was any audit conducted after Mr Davoren left to
32 ensure that indeed the matters he dealt with had been dealt
33 with properly?
34 A. Not for some years, but there was.
35
36 Q. When?
37 A. I think about 2008.
38
39 Q. Was that in regard to your then views on Mr Davoren’s
40 competence or for some other reason?
41 A. For a couple of reasons. There was an incident in
42 which I signed two contradictory letters on the same day
43 and through some – quite unrelated to this. I felt –
44 I concluded Mr Davoren probably drafted the letters. They
45 were examples of that muddle. We had evidence of the
46 muddle in this case, and so I asked for all the previous
47 work that had been done before Mr Salmon to be examined by
1 Corrs.
2
3 Q. As a result of that examination, was any complainant
4 approached and offered a different process or outcome from
5 the one they had experienced under Mr Davoren?
6 A. One complainant was approached, and corrections or
7 clarifications were made by Monsignor Usher.
8
9 Q. When was that?
10 A. It would be after 2008 or late in – I’m not sure.
11
12 Q. So some five or so years after Mr Davoren had left?
13 A. Yes, yes.
14
15 Q. Was one of the complaints that Corrs looked at the
16 Ellis complaint; is that right?
17 A. Yes, it was.
18
19 Q. Was Mr Ellis contacted in respect of his complaint?
20 A. I simply don’t know. Possibly not. I don’t know.
21
22 Q. Was a view formed by Corrs as to the Ellis complaints
23 handling by Mr Davoren?
24 A. I’d have to check, but I think that it was concluded
25 that it was – well, in the light – there was no option.
26 Once you accept Eccleston’s report, Davoren’s is manifestly
27 inaccurate.
28
29 Q. I think you knew before 2008, didn’t you, of the
30 inadequacies in Mr Davoren’s handling of the complaint
31 because Mr Ellis had sought a review, hadn’t he?
32 A. That is correct.
33
34 Q. The review report, initially by Mr Landa and then by
35 an interim review panel, revealed significant flaws?
36 A. That is correct.
37
38 Q. Did the receipt of either or both of those reviews
39 cause you earlier than 2008, that is, closer to 2005 when
40 the reviews were provided, to have an audit of Mr Davoren’s
41 work as the director?
42 A. At that stage, no, and certainly from the Ellis case
43 I think it had been clearly established that his work was
44 mistaken, deficient.
45
46 Q. After having read the assessment report of
47 Mr Eccleston, you understand that there was a process of
1 discussions about a facilitation taking place?
2 A. Yes.
3
4 Q. And a facilitator was appointed, Mr Brazil?
5 A. Yes.
6
7 Q. Did you have any role in appointing Mr Brazil?
8 A. I’m not sure whether I appointed him – I presume
9 I would have; I can’t recall exactly – or whether it was
10 done through Mr Salmon, but the normal thing would be
11 I think that I would have done it.
12
13 Q. That you would have approved the appointment of
14 Mr Brazil as facilitator?
15 A. Yes, yes.
16
17 THE CHAIR: Q. Why would you undertake that role rather
18 than leave it to Mr Salmon?
19 A. I’m not sure that I did officially, but I would have –
20 I mean, Salmon would have said, “I’m proposing to do this
21 and it’s a good thing”, and I would have said, “Yes, go
22 ahead.” But I can’t recall one way or the other whether
23 I was explicitly asked for permission or he said he was
24 going to do it and I said it was a good thing.
25
26 Q. It would be usual to ask for your permission, would
27 it?
28 A. Yes, it certainly would, for the appointment of
29 something like that, for sure.
30
31 MS FURNESS: Q. In fact, the Towards Healing protocol
32 provided, didn’t it, that the church authority and the
33 victims shall mutually agree on a facilitator?
34 A. Yes.
35
36 Q. So it was the case, wasn’t it, that you, the church
37 authority, either approved or agreed the appointment of
38 Mr Brazil?
39 A. That’s correct.
40
41 Q. It is the case, isn’t it, also that you appointed
42 Monsignor Rayner as your representative to attend the
43 facilitation on behalf of the archdiocese?
44 A. Yes.
45
46 Q. There were various discussions between
47 Monsignor Rayner and Mr Brazil and the Ellises in April and
1 May 2003; you’re aware of that?
2 A. Yes.
3
4 Q. I take it that Monsignor Rayner kept you informed as
5 to those discussions?
6 A. I can’t remember what he informed me about.
7
8 Q. Given that you had, firstly, appointed the assessor
9 and read the assessor’s report and agreed or appointed
10 Mr Brazil as the facilitator, you would have been most
11 interested to hear of the discussions that were being had
12 to move Mr Ellis’s complaint to resolution?
13 A. Yes, that was certainly my ambition.
14
15 Q. When you say it was your ambition, you are referring
16 to moving his complaint to resolution?
17 A. Yes.
18
19 Q. My question was, in order to satisfy that ambition,
20 you would have been most interested to hear of what
21 discussions were taking place moving towards the
22 facilitation?
23 A. What substantial progress or redress was made in those
24 discussions.
25
26 Q. Part of the progress or redress was the process of
27 working out Mr Ellis’s needs; isn’t that right?
28 A. That is the normal procedure, that’s correct.
29
30 Q. It is the case, isn’t it, that a facilitation normally
31 operates on the basis that the facilitator needs to
32 understand what the needs of the victim are?
33 A. That is correct.
34
35 Q. And the facilitator needs to tell the church authority
36 representative what those needs are; is that right?
37 A. That is correct.
38
39 Q. That’s intrinsic to the Towards Healing process, isn’t
40 it?
41 A. That’s correct.
42
43 Q. The facilitator needs to then convey to the
44 complainant the church authority’s position?
45 A. That’s correct.
46
47 Q. That’s the process that usually happens?
1 A. That’s right.
2
3 Q. When the victim or complainant indicates what their
4 needs are, that usually involves a process of calculation,
5 doesn’t it?
6 A. It does.
7
8 Q. Because you would understand, from both your
9 experience in Melbourne and now your several years of
10 experience in Sydney, that the needs of victims invariably
11 involve counselling?
12 A. Correct.
13
14 Q. Because the Melbourne Response had free counselling
15 made available, didn’t it?
16 A. Absolutely.
17
18 Q. But you knew that in Sydney, there wasn’t a free
19 counselling available in quite the same way as the
20 Melbourne Response, was there?
21 A. Not in quite the same way, but I never set any limit
22 on what counselling would be provided.
23
24 Q. So you would understand that the complainant in this
25 case, Mr Ellis, would be toting up the counselling he had
26 had, forming a view, with the benefit of expert advice, as
27 to the counselling he would require into the future?
28 A. Yes.
29
30 Q. And coming up with a figure?
31 A. Yes.
32
33 Q. You would also expect him to think about what other
34 needs that he had that he was able to view as being
35 consequent upon the abuse?
36 A. Yes.
37
38 Q. And coming up with a figure?
39 A. Yes.
40
41 Q. And then expressing that figure to the facilitator and
42 the church authority?
43 A. That’s correct.
44
45 Q. Knowing what the needs were as defined by the
46 complainant is a critical part of this process?
47 A. Yes.
1
2 Q. You knew, didn’t you, what Mr Ellis had said amounted
3 to a figure representing those needs?
4 A. No, I was never informed of his request for $100,000.
5 I was never informed of a counter-offer of $25,000 or
6 $30,000.
7
8 Q. Let’s firstly come to your statement, if we can,
9 cardinal. Could we have paragraph 97 up on the screen. In
10 paragraph 97, you say that you were aware that the
11 facilitation occurred on 20 July?
12 A. Mmm-hmm.
13
14 Q. And that Monsignor Rayner attended as your
15 representative; is that right?
16 A. Yes.
17
18 Q. You say about halfway down that to the best of your
19 recollection, you were not made aware at the time of any of
20 the figures or offers, as set out above. Do you see that?
21 A. I do.
22
23 Q. Then you say:
24
25 I was not consulted, as best I recall,
26 about what financial amount should be
27 considered.
28
29 A. I do.
30
31 Q. Just stopping there – at this time, that is, 20 July
32 2004, you had had a significant role in the handling of the
33 complaint by Mr Ellis, had you not?
34 A. I had some significant role, yes.
35
36 Q. You had been provided with and read the complaint;
37 that’s right?
38 A. Yes.
39
40 Q. You had formed the view that it was plainly a serious
41 complaint?
42 A. Correct.
43
44 Q. You had discussed with the director, Mr Davoren, the
45 complaint soon after it arrived?
46 A. Yes.
47
1 Q. You had agreed that Mr Ellis could meet with
2 Father Duggan?
3 A. Correct.
4
5 Q. You had made the decision that the meeting with
6 Mr Ellis and Father Duggan could continue, notwithstanding
7 that Father Duggan had dementia?
8 A. Correct.
9
10 Q. You discussed the complaint at a bishops meeting?
11 A. Correct.
12
13 Q. You did that because it was a complaint that was out
14 of the ordinary?
15 A. Yes, there were different features about it.
16
17 Q. And you needed the advice of your bishops as to how to
18 handle it?
19 A. I chose to ask their advice.
20
21 Q. And they gave it to you?
22 A. That’s correct.
23
24 Q. You then formed your own view about the status of the
25 complaint in December 2002, did you not?
26 A. Yes.
27
28 Q. And you recast a letter drafted for you by Mr Davoren
29 to Mr Ellis, did you not?
30 A. I did, in the interests of logic and honesty.
31
32 Q. By “honesty”, you’re saying it was clear that if it
33 was to be at an end, it was because he hadn’t been believed
34 and he should be told that; that’s what you mean by
35 “honesty”, isn’t it?
36 A. The letter stated that this matter could not be
37 satisfactorily resolved, and it is incompatible to say it
38 couldn’t be satisfactorily resolved if you concede that
39 hurt has occurred and that you don’t disbelieve him.
40
41 THE CHAIR: Cardinal, the question was different. Could
42 you put it again, Ms Furness.
43
44 MS FURNESS: Q. By “honesty”, you’re saying that it was
45 clear that if the complaint was to be at an end, it was
46 because he hadn’t been believed, and he should be told
47 that; that’s what you meant by “honesty”, isn’t it?
1 A. I don’t think that’s quite the same as what the letter
2 says. It says it can’t be established, and that’s – it
3 can’t – I suppose that’s almost the same as he’s not
4 believed, but it can’t be established that he’s telling the
5 truth. There is some logical difference between those two.
6
7 Q. Coming back to the events you were involved in, you
8 wrote that letter dated 23 December to Mr Ellis?
9 A. I did.
10
11 Q. You met with others when Mr Ellis was disappointed
12 with the letter; do you recall that?
13 A. Yes.
14
15 Q. You agreed to a medical assessment of Father Duggan?
16 A. Yes.
17
18 Q. You were informed of Father Duggan’s incapacity after
19 having been medically assessed?
20 A. Yes.
21
22 Q. You approved the appointment of an assessor; is that
23 right?
24 A. Yes.
25
26 Q. You read the assessor’s report?
27 A. I did.
28
29 Q. You understood the evidence that the assessor had
30 relied upon in forming the views he expressed?
31 A. I did.
32
33 Q. And you appointed or agreed to the appointment of
34 a facilitator?
35 A. Correct.
36
37 Q. In all of those circumstances, cardinal, I suggest to
38 you that it is inconceivable that having been involved in
39 each of those steps, you were not made aware of the amount
40 offered or put forward by Mr Ellis and the responses by the
41 church authority?
42 A. Once again, it’s not a question of what’s conceivable
43 or logically possible. The fact is that I wasn’t.
44 I wasn’t informed about any of this. Now, my recollections
45 have hardened a little bit on this beyond what is written
46 there, and it’s hardened by this thought and that is that
47 I can’t recall ever being consulted on deciding how much
1 might be offered in a Towards Healing offer for reparation
2 or compensation.
3
4 Q. In addition to the various steps that you approved or
5 were involved in along the way, I took you, after the
6 morning tea adjournment, cardinal, to the evidence given by
7 each of those with an involvement in the Towards Healing
8 process. Do you recall that?
9 A. I do.
10
11 Q. In respect of each of those who gave evidence which
12 differs from the evidence you’ve just given, your evidence
13 is that they were wrong?
14 A. Two of those pieces of evidence were hearsay. They
15 thought, and correctly, that would be the usual procedure.
16 The other piece of evidence is directly contradictory.
17
18 Q. When you say, “They thought, and correctly, that would
19 be the usual procedure”, are you referring to the evidence
20 that the usual procedure would be that you were involved in
21 discussions about money in relation to Towards Healing
22 matters?
23 A. Not quite that, but if there was a matter of $100,000,
24 I think, as distinct from smaller amounts, it was not
25 unreasonable for them to surmise that I would have been
26 told or asked about that.
27
28 Q. You are referring to Mr Salmon’s evidence, aren’t you?
29 A. I think so, yes.
30
31 Q. So you’re not saying that Mr Salmon was wrong, or are
32 you saying that he was wrong?
33 A. Well, if Mr Salmon was saying that I would normally
34 have been told when there was an amount out of the
35 ordinary, that’s quite a reasonable assumption, but —
36
37 Q. But he was wrong, was he?
38 A. No, no, he was right about his assumption, but it
39 never occurred like that.
40
41 Q. So he was right in assuming that you would normally
42 have been told; and your evidence is that on this occasion,
43 it wasn’t normal and you weren’t told?
44 A. He was right in the assumption that if there was an
45 amount of money beyond what is normal, I would have been
46 told. He might even have thought that all the sums were
47 cleared with me. They weren’t.
1
2 Q. If he thought that, it would have been because that
3 was usual practice; is that right?
4 A. No, not at all. I’ve explained a number of times what
5 the usual practice was.
6
7 Q. The event of Mr Ellis putting forward the sum of
8 $100,000 was unusual because of the amount; is that right?
9 A. It depends how you view it, but it was bigger than the
10 amounts of money that were generally awarded, if that’s the
11 word, in this system.
12
13 Q. Given that it was bigger than the amounts normally
14 awarded, wouldn’t that mean that one or more of those
15 engaged in the process would want to let you know?
16 A. Well, they didn’t.
17
18 Q. Because this was a matter you had been significantly
19 involved in, cardinal?
20 A. Yes, they didn’t. The only other factor is that I was
21 away off and on for quite an extensive period, which
22 overlapped, not entirely – there were some times when I was
23 home, but I was away a lot during this period.
24
25 Q. When you were away, you were in contact with the
26 archbishop’s office, weren’t you?
27 A. I was.
28
29 Q. Is it your evidence, cardinal, that not only did you
30 not know about the $100,000, you were not aware of the
31 offer put my Monsignor Rayner, as your delegate, of
32 $25,000?
33 A. That is correct.
34
35 Q. And you did not participate in any discussions whereby
36 that amount was ultimately raised to $30,000?
37 A. I did not.
38
39 Q. What did you understand to be the role of Catholic
40 Church Insurance in determining amounts to be offered under
41 Towards Healing?
42 A. They were very much involved, and what I think
43 happened was that Monsignor Rayner, following usual
44 practice, dialogued with Catholic Church Insurances about
45 the amounts.
46
47 Q. Would you expect Catholic Church Insurance to be part
1 of the discussions as to what amount should be offered?
2 A. Yes.
3
4 Q. And that that would be conveyed to you, that is, their
5 view of what should be offered?
6 A. No, I don’t think – they hardly ever did that, either.
7
8 Q. I’m sorry, you don’t think?
9 A. They didn’t do that as a regular basis at all.
10
11 Q. But they did from time to time?
12 A. Well, I’m not even sure of that.
13
14 Q. If they didn’t do it as a regular basis, they must
15 have done it from time to time?
16 A. No, not necessarily. I’m trying to be cautious in my
17 replies, just in case my memory is a little bit faulty.
18 I don’t recall them asking my permission for a particular
19 sum under Towards Healing. And I repeat what I said
20 earlier: in court cases when there was a very big
21 difference between the norm and the claim, these were
22 mentioned to me.
23
24 Q. Isn’t this similar to a court case where there was
25 a very big difference between the norm and the claim,
26 except it was under Towards Healing?
27 A. No, it’s a Towards Healing procedure.
28
29 Q. The principle doesn’t apply – no?
30 A. Ms Furness, I’m – the logic is all over the place.
31 All I can tell you is that I wasn’t told about any of these
32 three sums.
33
34 Q. You say in paragraph 98 of your statement that you
35 have no recollection of being informed of the result of the
36 facilitation at the time, although it’s possible that you
37 were?
38 A. Mmm-hmm. That’s correct.
39
40 Q. Do you now have a recollection of when you were told
41 the result of the facilitation?
42 A. No.
43
44 Q. What do you understand now to have been the result of
45 the facilitation?
46 A. That $100,000 was offered; that it was proposed by
47 Mr Ellis; that $25,000 was offered by the archdiocese; and
1 when it was learned that Mr Ellis had lost a position of
2 earning $300,000 a year, that that was increased by $5,000,
3 which of course is grotesque and totally inappropriate; and
4 finally, too, that there was a dispute about whether
5 $100,000 might or might not be offered with or without
6 a release; and I think the documents show that Mr Ellis was
7 not prepared to accept $100,000 and give a release.
8
9 Q. When did you gain the understanding you’ve just
10 provided?
11 A. Well, after I met with Mr Ellis and his wife very late
12 in the piece.
13
14 Q. In 2009, you’re referring to?
15 A. Yes.
16
17 THE CHAIR: Q. Cardinal Pell, Ms Furness is going to
18 take you to the history of the litigation and your
19 involvement in that process. You understand that will
20 happen. Do you say you didn’t know of the $100,000 offer
21 or the result of the facilitation until you ultimately
22 spoke with Mr Ellis?
23 A. I knew that the facilitation had failed or didn’t
24 resolve the matter. I didn’t know about the sums.
25
26 Q. I was going to ask you that. You say you now have
27 a recollection earlier than speaking with Mr Ellis that the
28 facilitation had failed, do you?
29 A. Well, the whole process would not have continued if it
30 had been successful.
31
32 Q. Did it not occur to you to ask why it had failed and
33 what had happened?
34 A. If I did, and I can’t recall – it’s a bit of a mystery
35 to me that, if I was told anything about it, why I don’t
36 remember it, but I don’t remember it, full stop. I said:
37
38 I have no recollection of being informed of
39 the result of the facilitation at the time,
40 although it is possible that I was.
41
42 It is remotely possible that somebody said to me,
43 “He wanted to settle for $100,000 but wouldn’t give a
44 release”, and I would have said, “Yes.” That’s
45 unexceptional, I can understand that, because he would have
46 wanted a release. I have no recollection of that
47 happening. It’s possible that something like that was said
1 and I put it into an “expected” basket and forgot about it,
2 but I have no recollection of $25,000 or $30,000 or
3 $100,000.
4
5 Q. You, in your role in the litigation, knew that the
6 church would have to spend a lot of money in court
7 defending its position, didn’t you?
8 A. Of course. We never instigated these —
9
10 Q. I know that, but you knew that to defend it was going
11 to cost a lot of money?
12 A. Exactly.
13
14 Q. Because you had been involved in engaging solicitors
15 to defend actions both in Melbourne and in Sydney
16 previously?
17 A. That’s correct.
18
19 Q. Do you say that it didn’t occur to you to ask your
20 people, “Before we spend all this money, how much does he
21 really want?”
22 A. I think that had been made clear. There was a request
23 for $750,000.
24
25 Q. No, that’s after the litigation started. Before the
26 litigation, when you committed yourself – and Ms Furness is
27 coming to this – to a large city firm to act on behalf of
28 the church, did it not occur to you to say to your people,
29 “Can you tell me, what does he really want? What happened
30 in the facilitation? What does he want?”
31 A. I can’t remember doing it exactly in those terms.
32 I had good advisers. I had plenty of other things on. And
33 also it’s on the record, Monsignor Rayner, for better or
34 worse, felt that he wasn’t interested in settling.
35
36 Q. But surely you were? Surely you were interested in
37 minimising the risk to the church and also in a just and
38 compassionate way helping Mr Ellis, weren’t you?
39 A. I was, and now I’m aware I should have done more in
40 that direction.
41
42 Q. I’ll just put it to you again: are you saying that it
43 did not occur to you to ask your people, “What does
44 Mr Ellis really want? What did he want in the
45 facilitation?”
46 A. No, I couldn’t agree with that, because that would
47 have been implicit in all our discussions, and if there had
1 been any possibility of settling in what we regarded as
2 a reasonable amount, we would have taken it.
3
4 Q. If you had asked that question, you would have been
5 told that he had asked for $100,000, wouldn’t you?
6 A. Very likely, yes.
7
8 Q. So we’re now in the position where you accept that you
9 did ask the question. Aren’t we in the position where you
10 have to accept you were told of the $100,000?
11 A. Certainly not, because it didn’t happen.
12
13 MS FURNESS: Q. It is certainly possible, isn’t it, that
14 you now don’t recall it, but you did ask the question and
15 were told that Mr Ellis had put forward $100,000?
16 A. A very remote possibility. The only way in which that
17 remote possibility might have come about is if he put
18 forward $100,000 and refused to give a release, I might
19 have put that into only too normal a basket, but I’ve got
20 no such recollection.
21
22 MEMBER OF THE PUBLIC: You should be ashamed of yourself,
23 cardinal.
24
25 THE CHAIR: Sir, if you wouldn’t mind.
26
27 MEMBER OF THE PUBLIC: I’m sorry, your Honour.
28
29 THE CHAIR: Please leave us.
30
31 MS FURNESS: Q. Cardinal, can I suggest that you would
32 not have been able to properly instruct your lawyers in the
33 litigation without knowing how the facilitation ended up in
34 terms of the putting forward and rejection of offers?
35 A. I did not know about the sums of money.
36
37 Q. Do you accept that to properly instruct your
38 solicitors, you needed to know that information?
39 A. At the time, I didn’t and it wasn’t pointed out to me.
40
41 Q. I’m sorry, at the time, you didn’t what?
42 A. I didn’t realise that I should have inquired to try to
43 find out why that facilitation failed.
44
45 Q. When you say it wasn’t pointed out to you, who should
46 have pointed it out to you?
47 A. Well, there was a whole host of people. I talked to
1 the lawyers, the professional standards person, perhaps the
2 chancellor, perhaps Dr Casey. They – anyhow, whatever,
3 whatever it is – and I don’t recall any of that.
4
5 Q. It is the case, isn’t it, that a number of those
6 people – and I’ve taken you to this earlier – in fact do
7 and have given evidence of your knowledge of these amounts
8 and you have said that each of them is wrong?
9 A. I don’t – I haven’t said that at all.
10
11 MR GRAY: I object. With great respect, he has not said
12 that.
13
14 MS FURNESS: Q. I’ll take you back to that evidence,
15 cardinal. Do you recall that you gave evidence this
16 morning in relation to your knowledge of those amounts?
17 A. I did.
18
19 Q. I put to you the evidence of various people in respect
20 of your knowledge of those amounts?
21 A. Yes.
22
23 Q. You indicated that each of those, now with the
24 exception of Mr Salmon, who you have given further evidence
25 about this afternoon, was wrong. Now, can I put those back
26 to you again?
27 A. Please do.
28
29 Q. Dr Michael Casey gave evidence that the role of the
30 chancellor was to discuss money matters in relation to
31 Towards Healing with you and seek instructions?
32 A. He did say that.
33
34 Q. Is he wrong?
35 A. In the second part, he was. The chancellor should
36 have been in dialogue with me.
37
38 Q. But not seek instructions in relation to money
39 matters; is that where he’s wrong?
40 A. Well, he might have done that, but he didn’t, and he
41 would only be expected to do that if it was outside the
42 ordinary.
43
44 Q. You referred to professional standards people before.
45 Mr Davoren gave evidence that the decision whether
46 a complainant should receive compensation was made by you
47 in every case. Was he wrong about that?
1 A. He was. It was endorsed by me and that was done
2 automatically within – well, in just about every case.
3
4 Q. What was endorsed by you?
5 A. The fact that the chancellor had the authority to
6 decide on these sums with the Catholic Church Insurance.
7
8 Q. Dr Casey gave evidence that he agreed that considering
9 your involvement in Towards Healing, you have sought
10 information about reparation discussions up to the
11 facilitation, and that information would normally be
12 provided to you by the chancellor and the director of the
13 Professional Standards Office?
14 A. Yes.
15
16 Q. So is his understanding wrong?
17 A. It is inaccurate in this case and, actually,
18 generally, as I have said, about the way the money was
19 handled under the Towards Healing.
20
21 Q. So he’s generally wrong in respect of how the money
22 was handled under Towards Healing?
23 A. Yes, and that’s not surprising. I mean, I didn’t –
24 I don’t inform one adviser what I’m doing necessarily with
25 other advisers, and it’s not an unreasonable assumption,
26 but in this case, and in fact generally with Towards
27 Healing, it was inaccurate.
28
29 THE CHAIR: Q. But, cardinal, he’s speaking from his
30 knowledge, isn’t he?
31 A. He is surmising that that’s what would have happened
32 and should have happened. He’s not speaking from any
33 knowledge that I did it, because I didn’t.
34
35 Q. But he’s speaking from his knowledge as to how you
36 worked?
37 A. How I would normally work.
38
39 MS FURNESS: Q. But on this occasion, you didn’t work as
40 you would normally work; is that your evidence?
41 A. No, that’s not my evidence, with respect. I’ve
42 repeatedly said that in the Towards Healing payments, I was
43 not consulted, to my recollection, ever and I certainly
44 wasn’t consulted on this occasion.
45
46 Q. Monsignor Rayner gave evidence that he would discuss
47 with you a figure, and the final discussion would be with
1 you as to what figure would be offered. Is he wrong?
2 A. I’m sorry, that’s quite wrong.
3
4 Q. Monsignor Rayner also said that from discussions with
5 Mr Salmon or the business manager or you, he would come up
6 with an offer; is that right?
7 A. Not from discussions with me.
8
9 Q. Did you understand him to have discussions with
10 Mr Salmon or the business manager in determining amounts to
11 be offered to claimants?
12 A. A good deal of the time, I wouldn’t have been quite
13 sure what Monsignor Rayner was doing. The general – I do
14 believe the evidence shows that he spoke with Catholic
15 Church Insurances on these matters. Whether he spoke with
16 Mr Salmon, that wouldn’t be unusual.
17
18 Q. Cardinal, notwithstanding that you weren’t told of the
19 outcome or the results of the facilitation at that time,
20 you were told, were you not, that Mr Ellis had sought
21 a review of Towards Healing?
22 A. Yes.
23
24 Q. Can I have paragraph 40 of your statement on the
25 screen. Can you see paragraph 40?
26 A. Yes.
27
28 Q. It refers to your fundamental belief that where
29 a person, such as Mr Ellis, has been abused by a priest,
30 then he should be treated consistently with the
31 requirements of justice and compassion. Do you see that?
32 A. Absolutely.
33
34 Q. You would agree that Mr Ellis was not treated
35 consistently with the requirements of justice and
36 compassion during the Towards Healing process?
37 A. Actually, I would.
38
39 Q. Do you agree to that?
40 A. Yes.
41
42 Q. It continues to say:
43
44 … including among other things with an
45 appropriate financial response in the
46 circumstances of that person’s case …
47
1 A. That’s correct.
2
3 Q. Mr Ellis was not offered an appropriate financial
4 response, was he?
5 A. I didn’t know about that at that stage, so that
6 section is not relevant to —
7
8 THE CHAIR: Q. No, cardinal, that was not the question.
9 A. I’m sorry.
10
11 MS FURNESS: Q. The question was: Mr Ellis was not
12 offered an appropriate financial response, was he?
13 A. The $25,000 or $30,000 – no, that’s correct. That’s
14 not appropriate in any sense.
15
16 Q. You indicated earlier that the $30,000 wasn’t
17 appropriate – in fact, I think you used the word
18 “grotesque” – because it was an increase of $5,000 in
19 circumstances where he’d lost a job with significant salary
20 attached to it?
21 A. Yes, and that’s a further indication that I had
22 nothing to do with it.
23
24 Q. What about the $25,000 initial offer – what do you say
25 about that?
26 A. Oh, it was mean.
27
28 Q. Had you been approached – and your evidence is that
29 you haven’t – what would you have said as an offer to
30 Mr Ellis in 2004?
31 A. I really don’t know, but I would have asked for advice
32 about what was a reasonable thing.
33
34 Q. What would you think?
35 A. Well, I mean, this is with the virtue of hindsight.
36 If Mr Ellis had been satisfied with $100,000, it would have
37 been an excellent outcome.
38
39 Q. That was out of the normal at that time, wasn’t it, to
40 offer $100,000 under Towards Healing?
41 A. Yes, it was, it was.
42
43 Q. But you’re saying that in Mr Ellis’s case and with the
44 benefit of hindsight, you would have offered him $100,000
45 or accepted his offer?
46 A. I didn’t quite say that. I said that I would have
47 inquired as to what was reasonable, and I think – you see,
1 I was always aware that Mr Ellis was a brilliant lawyer and
2 therefore that he would be aware, much more aware than most
3 victims, and that it didn’t make any sense for him to be
4 going down this path without hoping for a significant
5 amount of money.
6
7 Q. I’m sorry, this is the view you held then or now?
8 A. No, that’s a view I’ve held from very early days of
9 the case.
10
11 Q. So “it didn’t make sense for Mr Ellis to be going down
12 this path”, “this path” being Towards Healing; is that
13 right?
14 A. No, not at all.
15
16 Q. You’re talking about the litigation, are you?
17 A. No. I’m talking about it didn’t make sense, once we
18 started to talk about reparation or compensation, and
19 especially in the litigation, for him to – not to expect
20 significant moneys. So I would have been open to the
21 discussion, that given these circumstances – I would have
22 asked advice about the $100,000. That’s the way I would –
23 I act when there’s something of some significance and a big
24 difference, I would discuss it with my three or four
25 trusted advisers.
26
27 Q. You must have been very annoyed, cardinal, when you
28 later found out that you could have settled it for
29 $100,000, and you would have had those around you told what
30 was going on, that they hadn’t told you, were you?
31 A. Yes. Well, I was annoyed if I’d – because I think
32 I said, when meeting with Mr Ellis, the thought that we
33 could have concluded the thing for $100,000 and that
34 opportunity slipped away was most unfortunate.
35
36 Q. Who have you taken to task for not having told you
|
37 about the $100,000, cardinal?
1 A. Well, you see, the others – they thought I probably
2 knew.
3
4 Q. And they thought that reasonably?
5 A. It wasn’t unreasonably, but it was just not accurate.
6
7 Q. And who are “they”?
8 A. Well, the chancellor, the Professional Standards
9 Office, secretary, but you know, I’m not the sort of fellow
10 who runs around blaming people for misunderstandings.
11
12 Q. It cost the church or its insurers an awful lot of
13 money not settling for $100,000, didn’t it?
14 A. I’m more aware of that than most people.
15
16 Q. In those circumstances, cardinal, you haven’t sought
17 to take to task those who you thought were responsible for
18 not telling you the information you think you should have
19 had?
20 A. There was only one person primarily responsible for
21 that, and I asked him to finish up and move on, and I was
22 keen not to further worsen what had become a very difficult
23 relationship.
24
25 Q. When did Monsignor Rayner leave?
26 A. I think 2005, March or April 2005. I could – I think
27 that’s right.
28
29 Q. Why did you ask him to leave?
30 A. Because things were going from bad to worse. Let me
31 give a little background. The monsignor is a good person.
32 He’d had a high office in the chaplaincy in the navy.
33 I thought he was capable of doing this job. I put him into
34 the job, and it was completely beyond him and he sort of
35 disintegrated. He would consistently get hold of the wrong
36 end of the stick. One of the roles of a vicar general is
37 to put out bushfires – I mean, when there are difficulties,
38 people complain about priests. In fact, the opposite was
39 happening. I was putting out the fires that inadvertently
40 the monsignor was starting. Let me give you an example of
41 how —
42
43 Q. Just before you do that, can I ask you whether he got
44 the wrong end of the stick in relation to the Ellis matter?
45 A. Well, he certainly did on the matter of these sums of
46 money.
47
1 Q. What did he do that was wrong?
2 A. One, he didn’t tell me. And secondly – well, firstly,
3 he didn’t tell me, and then the $25,000 or $30,000, in that
4 particular case, wasn’t likely to be helpful at all.
5
6 Q. Because it was too low in the circumstances?
7 A. Yes, yes.
8
9 Q. You became aware, cardinal, in August 2004 that
10 Mr Ellis had commenced litigation against you, the trustees
11 and Father Duggan?
12 A. Yes.
13
14 Q. I take it that you were told that the nature of the
15 litigation was that he was seeking to extend the limitation
16 period to enable him to make a claim. Did you understand
17 that?
18 A. I do.
19
20 Q. And did you understand then – that is in August 2004 –
21 that the extension would not be granted if a prospective
22 defendant – you, the trustees, Father Duggan – would incur
23 significant prejudice? Did you understand that that was
24 what the court would be considering?
25 A. Could you say that again so I can understand it?
26
27 Q. Certainly. Did you have an understanding then that
28 the extension of time within which Mr Ellis could bring his
29 action —
30 A. Yes.
31
32 Q. — would not be granted, that is, he would not be able
33 to take his action, if a prospective defendant – you, the
34 trustees, Father Duggan – would incur significant
35 prejudice?
36 A. Which is financial disadvantage or something or?
37
38 Q. Well, significant prejudice, however one —
39 A. Difficulty in defending the case or?
40
41 Q. Yes, the passage of time is one obvious prejudice that
42 one could call upon.
43 A. Yes.
44
45 Q. And the passage of time by reference to needing to
46 investigate the claim that was made – did that come to your
47 attention early on in the litigation?
1 A. I’ve got no clear recall of that. That’s a – I asked
2 very good lawyers to deal with it. I left the running of
3 the case to them. I was very clear on what I thought were
4 a couple of very fundamental points, but overwhelmingly for
5 the rest of the time, I let them get on with the case.
6
7 Q. Yes, but this was no ordinary case, was it, cardinal?
8 You were actually one of the defendants?
9 A. Well, I’d been the defendant before, and to go to
10 court like this was – we’ve done it a few – we’ve had to do
11 it a few times. We’ve always settled, or nearly, so this
12 was unusual.
13
14 Q. So you were a defendant in your own right as
15 archbishop and you were a defendant as one of the trustees?
16 A. That’s correct.
17
18 Q. Isn’t that right?
19 A. Yes.
20
21 THE CHAIR: Q. Cardinal, when you say you’ve always
22 settled, you always settled cases like this one?
23 A. I don’t know whether mathematically it would be
24 always, but I’m careful to say we nearly always have, if we
25 haven’t always.
26
27 Q. Cases like this one?
28 A. Like this one, when it goes to court.
29
30 Q. What was unusual that made you not settle this one?
31 A. I think the amounts of money asked, the $750,000, was
32 too much and also our lawyers were saying that on the
33 matters of the trustees, there’s no chance that the case
34 will be successful.
35
36 Q. And you’d never been told that before?
37 A. Never been told that before?
38
39 Q. You said you’ve settled mostly previously. You’d
40 never been told?
41 A. No, we had been told about the trustees argument, but
42 in other cases the sums of money were able to come together
43 and people were able to settle.
44
45 Q. You never made a counter-offer to the $750,000, did
46 you?
47 A. No, we didn’t and I regret that now.
1
2 Q. I assume in other cases, you did?
3 A. That’s correct.
4
5 Q. Why didn’t you do it in this one?
6 A. Because I think we were advised not to. I think we
7 were – well, we were advised not to.
8
9 Q. You ultimately had control over the instructions,
10 didn’t you?
11 A. I do and did.
12
13 Q. Why didn’t you then make a counter-offer?
14 A. I don’t know whether I was away at that stage, but
15 I didn’t. I accepted the advice, and it was a mistake.
16
17 MS FURNESS: Q. When you’d settled previously, cardinal,
18 had the lawyers for the Catholic Church Insurance been
19 acting for you?
20 A. In most cases. I couldn’t say that they were in every
21 case. I don’t know.
22
23 Q. This was the first case that Corrs had acted for you
24 in a case like this, a child sexual abuse case, wasn’t it?
25 A. Yes.
26
27 Q. Generally the Catholic Church Insurance had acted for
28 you in the past?
29 A. Yes.
30
31 Q. The cases which settled were generally those where the
32 Catholic Church Insurance were advising you, by their
33 lawyers?
34 A. Yes, I’m not sure that’s always the case, but that’s
35 right.
36
37 Q. You have indicated in your statement that you
38 understood that Towards Healing would not continue once
39 a legal avenue had been chosen?
40 A. That is correct.
41
42 Q. Why did you think that?
43 A. The parallel that came to my mind – in hindsight, it
44 might not be appropriate – was, say, if there is a Towards
45 Healing investigation and the police become involved, you
46 immediately get out of it. And my feeling was that if the
47 litigation commenced, the appropriate thing to do was to
1 leave the Towards Healing to one side and let the
2 litigation go ahead, and I received certainly some
3 significant confirmation of that instinct of mine from our
4 advisers.
5
6 Q. The Towards Healing process had two components, didn’t
7 it?
8 A. It did.
9
10 Q. It had a pastoral component?
11 A. Yes.
12
13 Q. And it had a quantification of needs, if I can put in
14 those terms, component?
15 A. That’s for the latter part of it, yes.
16
17 Q. Yes. Why can’t the pastoral elements, that is,
18 talking to the complainant, listening to them, dealing with
19 any counselling needs they have, maybe any other spiritual
20 needs they have – why can’t those elements continue?
21 A. Certainly the counselling by other people, spiritual
22 direction – that certainly should have been made available.
23 I was frightened that if – my knowledge of the law is not
24 expert – that if the dialogue kept going within the Towards
25 Healing while the litigation was on, it risked grievous
26 confusion. If a judge had ordered a mediation, that would
27 have been entirely – or suggested, it would have been
28 entirely different. In retrospect, I don’t know whether my
29 decision there was correct or not, but a number of advisers
30 agreed with it.
31
32 Q. Father Usher certainly didn’t agree with that, did he?
33 A. I can’t remember what he said on that, but I always
34 take an enormous amount of notice of Monsignor Usher.
35
36 Q. There’s no reason of principle, is there, leaving
37 aside the law, as to why you can’t engage in a pastoral
38 way, as the church intends, with a complainant?
39 A. There’s no Christian reason why not to. I thought
40 that it was not good legal practice.
|
41
1 Q. Why didn’t the church man come to the fore?
2 A. Because it was a legal case. If it had been – when
3 you go to court, you employ lawyers and you generally
4 follow their advice, especially if you’re inexpert. If
5 it’s a matter of pastoral counselling or care, I’d have
6 much more confidence in my ability to influence things.
7
8 Q. Lawyers act on instructions, don’t they?
9 A. Yes, they do, but generally they advise what the
10 instructions should be.
11
12 Q. Did you feel unable to take any action that was not
13 consistent with what you were advised you should do?
14 A. Not really. I’m not suggesting for a minute that our
15 lawyers did anything contrary to instructions. In
16 retrospect, our surveillance and our instructions would be
17 much more extensive.
18
19 THE CHAIR: Q. Cardinal, you may not have this
20 experience, but is it within your knowledge that many
21 executives of major corporations who became involved in
22 litigation – that is, their companies do – see a need to
23 ensure that the litigation doesn’t have the effect of
24 disproportionately breaking the relationship between that
25 company and the company they’re litigating with? Do you
26 understand that?
27 A. I do understand what you’re saying. We now have our
28 in-house lawyer who, if we’re involved in any court cases,
29 sits in on all the court cases precisely to avoid the sort
30 of mess we got into.
31
32 Q. What the executives of those companies do, of course,
33 is agree to mediate and try to sort out their problems in
34 a mediation rather than let it become a complete contest in
35 the court?
36 A. And we usually did that, and I very much regret we
37 didn’t try to do it more than we did in this case.
38
39 Q. You rejected the prospect of mediation here, didn’t
40 you?
41 A. I did.
42
43 Q. Why?
44 A. Because we were so advised.
45
46 Q. But, you see, what I’m saying to you is that
47 executives of major companies, notwithstanding the advice
1 they may get that they’re going to win, nevertheless see
2 a need to ensure that there’s an ongoing relationship and
3 so will mediate and settle. Do you understand that?
4 A. I certainly do. I’m not the executive of a major
5 company. I’m not – I haven’t regularly been involved in
6 this. You might say that there was more of an onus on me
7 to seek mediation than perhaps in a company, and I would
8 have to accept that.
9
10 Q. That’s right. What I was going to put to you is that
11 central in your thinking surely was the need to preserve
12 Mr Ellis’s spiritual welfare and connection with the
13 church; is that right?
14 A. Yes, certainly his personal wellbeing was – should
15 have been and was to some extent my first concern. Whether
16 you’d put it in specifically spiritual or religious terms
17 I don’t know.
18
19 Q. It was very important that, if possible, there be an
20 ongoing relationship between him and the church?
21 A. I certainly agree with that.
22
23 Q. Did that not suggest to you that there was a higher
24 obligation on you than the chief executive of a major
25 company?
26 A. I would put in – yes, I can see that now very clearly.
27
28 Q. You didn’t see it back then?
29 A. No, I didn’t think in those terms.
30
31 MS FURNESS: Q. Dr Casey was the primary instructor,
32 based on the instructions you gave him, to the lawyers in
33 the litigation, wasn’t he?
34 A. The chancellor should have been the primary
35 instructor. One way or another, it emerged that Dr Casey
36 was the link between the archdiocese, between myself, and
37 the lawyers. In retrospect, if I had adverted to this, to
38 the extent that this was happening, I would have encouraged
39 the lawyers to speak with the chancellor, who was much more
40 experienced in these matters than Dr Casey.
41
42 Q. When you say he was the “link”, I take it you mean
43 that he conveyed your instructions to the lawyers and
44 conveyed back to you what the lawyers had told him?
45 A. Yes, and there weren’t too many instructions. My
46 instinct was to follow the advice of the lawyers.
47
1 Q. Perhaps if we can have your statement back up on the
2 screen at paragraph 109. You state in paragraph 109 what
3 your advice was, that is, that it couldn’t succeed as
4 a matter of law. Do you see that?
5 A. I do.
6
7 Q. And then in paragraph 110, relying on such advice and
8 also because of your understanding that Mr Ellis was
9 seeking many millions of dollars in compensation from the
10 archdiocese, the instructions given to Corrs on your behalf
11 were to resist the proceedings brought by Mr Ellis. Do you
12 see that?
13 A. I do.
14
15 Q. If Mr Ellis had been entitled to compensation because
16 of the harm that had befallen him, you would have thought,
17 would you not, that that compensation should reflect the
18 damage?
19 A. Yes, there’s always a question of where the damage
20 comes from, of course, but —
21
22 Q. That’s right, but —
23 A. But as a general sort of rule – and my general norm
24 was that we certainly should acknowledge our responsibility
25 within the parameters of what is done in Australian
26 society.
27
28 Q. It didn’t matter whether Mr Ellis was seeking many
29 million of dollars or not, did it?
30 A. Of course it mattered. Of course it mattered.
31
32 Q. In the event that the claim, as you were advised,
33 couldn’t succeed as a matter of law, what difference did it
34 make what he was seeking in terms of quantum or damages?
35 A. They’re two logically distinct things. The
36 hypothesis, of course, as to whether you pay millions or
37 not is consequent on the hypothesis that it was going to
38 succeed. Because it’s unlikely to succeed, it doesn’t
39 prevent you from considering what might be the financial
40 consequences.
41
42 Q. If it succeeded – the ultimate claim, not just the
43 limitation claim – if it succeeded, it would mean that
44 a court of law had found that, in broad terms, the church
45 was responsible for the damage caused to Mr Ellis arising
46 from the sexual assault by Father Duggan, do you accept
47 that, if he had succeeded – if he had succeeded?
1 A. Not in those terms.
2
3 Q. If he had succeeded, his ultimate claim was a claim of
4 damages against the church for what had happened to him?
5 A. No, it wasn’t. It was a claim for damages against the
6 trustees, who are the property holders.
7
8 Q. Leave aside how he identified the church for the
9 moment. My questions are based on the assumption that if
10 he succeeded – do you understand that? So if he succeeded,
11 then it would be a court finding that the church, however
12 described, was responsible for the damage suffered by him
13 as a result, in broad terms, of the actions of
14 Father Duggan. Do you accept that?
15 A. Well, I think to keep talking about “the church” is
16 not helpful.
17
18 Q. Just bear with me for the moment, cardinal.
19 A. Certainly.
20
21 Q. If in fact that’s the case, then it shouldn’t matter
22 to you in the church as to how much was necessary to
23 compensate him, because you should have been willing to pay
24 whatever a court ordered was necessary to compensate him;
25 isn’t that the case?
26 A. Two parts to that. Of course we would have paid
27 whatever the court ordered. But of course it is important
28 to me about the amounts, because I have a number of duties
29 and one important duty is not to spend the money of the
30 church unnecessarily or – in other words, to preserve the
31 patrimony of the church, provided that can be done justly.
32 I don’t apologise for being aware of the need not to spend
33 church money excessively, provided we acted justly.
34
35 THE CHAIR: Q. Cardinal, you say to Ms Furness it’s not
36 helpful to talk about “the church” in this context.
37 A. Mmm.
38
39 Q. In paragraph 155(d) of your statement, that’s what you
40 do, isn’t it?
41 A. We’d have to have a look at that.
42
43 Q. Yes. Do you see there you say in the third-last line
44 that your own view is that the church in Australia should
45 be able to be sued in cases of this kind?
46 A. Yes, but that’s one passing reference said in a whole
47 set of other references.
1
2 Q. It is a reference to the church being able to be sued.
3 A. I agree that that’s now my position. I believe the
4 church always can be sued through its officials. That I —
5
6 Q. There’s much more discussion we need to have about
7 this to help us work out what we need to say, but for the
8 moment Ms Furness was putting to you that the result of an
9 order by a court would be that the church was liable?
10 A. The court could only give an order if it identified
11 which element within the church had responsibility. The
12 church – what has been established is that the property
13 holders of the church cannot be held liable – that’s the
14 trustees – if they do not appoint and supervise staff. So
15 to that extent, it’s different from the moral
16 responsibility of the church, which I’m prepared to
17 concede.
18
19 Q. We’ll discuss that, too. When you said that your own
20 view is that the church in Australia should be able to be
21 sued, who did you have in mind should be able to be sued?
22 A. I’m proposing that we never want to repeat the amount
23 of time and tears and that went into this fight over
24 trustees. I think it has been established beyond doubt
25 that the trustees, as property owners, cannot be sued if
26 they don’t appoint —
27
28 Q. I understand that, but who did you have in mind should
29 be able to be sued when you said that?
30 A. I was suggesting that we set up a corporation sole and
31 that that corporation sole would have perpetuity and would
32 appoint and supervise people so that if – so that the
33 successors, if God forbid there were any after Mr Ellis,
34 would have somebody to sue.
35
36 Q. That’s your suggestion as to the future?
37 A. That’s right.
38
39 Q. Why doesn’t justice require the same response for the
40 past?
41 A. Because as an Australian citizen, the church has the
42 same rights as any other citizen. In other words, we have
43 every right to defend ourselves in law, we have every right
44 to do that and we have done that, recognising the legal –
45 we didn’t devise the law – the legal limitations. As well
46 as that, we recognise our moral obligations, and these are
47 met with money in a non-legal way. But we – I do not
1 accept that the church should somehow be penalised
2 different from other Australian citizens in the way it
3 defends itself.
4
5 Q. What you are saying, for the future, is that there
6 should be a structure so that people like Mr Ellis are able
7 to sue and receive a verdict from a court; isn’t that
8 right?
9 A. For the future?
10
11 Q. Yes.
12 A. Yes.
13
14 Q. What I’m putting to you is that if that’s justice as
15 you see it for the future, as you sit there now, why
16 wouldn’t it be just for the same response to have been made
17 previously?
18 A. Because that wasn’t the law.
19
20 Q. So justice is measured only through the civil law, is
21 it?
22 A. I would imagine when you go to litigation, there’s no
23 alternative. But there’s another more formidable barrier
24 to the successful suing, and that is the non-acceptance of
25 vicarious liability. I think in many ways, both victims’
26 and defendants’ lawyers have overestimated the importance
27 of suing the trustees, because the assets of the church
28 were always available to pay damages, but if there was no
29 negligence, if there was no earlier information, if decent
30 protocols were put in place, then in a legal sense the
31 church is not liable. We don’t accept the legal principle,
32 but we do accept the moral responsibility, and we’ve paid
33 and expressed our acceptance of that moral responsibility
34 through payments.
35
36 Q. Can I just read this to you. It’s a quote, and it is
37 talking about a priest who abused. It says:
38
39 The relationship has facilitated the
40 commission of the abuse by placing the
41 abusers in a position where they enjoyed
42 both physical proximity to their victims
43 and the influence of authority over them
44 both as teachers or priests and as men
45 of God.
46
47 Do you understand what that’s saying?
1 A. Of course.
2
3 Q. What it is saying, isn’t it, is that the church
4 structure creates the opportunity for the relationship
5 between the priest and the abused for that abuse to occur?
6 A. In a somewhat similar, not necessarily exactly
7 similar, way as a child at a rugby league club or a
8 scouts —
9
10 Q. Yes, quite.
11 A. But there’s no doubt that that is true.
12
13 Q. That is true. As far as the church is concerned, of
14 course, it makes the offer, if I can put it in those terms,
15 to parents of children that they should bring their
16 children to the church, where they will be cared for,
17 nurtured spiritually and helped to grow as human beings;
18 correct?
19 A. Yes, in a way that is done in other churches, other
20 communities, other sporting groups, that so invite the
21 children. They’re not an exact parallel, but they’re quite
22 similar.
23
24 Q. What the church does, of course, through the many ways
25 it carries out its activities, it provides an opportunity
26 for the priest to be alone with the child; do you agree?
27 A. Well, no longer.
28
29 Q. What do you mean?
30 A. I mean, all the protocols now would counsel against
31 a priest being alone with a child.
32
33 Q. That’s right. Nevertheless, that, for as long as
34 there is a memory, would have been the opportunity that was
35 provided to a priest, would it not?
36 A. That’s correct, yes, yes. Like that of a family
37 friend when that trust is abused.
38
39 Q. That’s right, but the church also, of course,
40 traditionally has vested a position of authority in its
41 priests, has it not?
42 A. It has.
43
44 Q. And, as you know, priests are held in the highest of
45 esteem by members of the church?
46 A. Yes, that’s a little bit of an overstatement at the
47 moment, but —
1
2 Q. Maybe.
3 A. — I understand exactly what you’re saying.
4
5 Q. For that reason, children, as you no doubt have been
6 told many times, as have we, have found it impossible to
7 complain to anyone about the abuse that’s being inflicted
8 upon them by a priest?
9 A. Have found it impossible to?
10
11 Q. Impossible to complain to anyone about what was
12 happening to them?
13 A. What, because nobody would listen?
14
15 Q. That’s right, no-one would believe them, because the
16 priest was held in such high esteem by everyone that no-one
17 would listen, and we’re told that, I can tell you,
18 cardinal, over and over again?
19 A. Yes, and I obviously regret that and I hope that
20 that’s not the case any more.
21
22 Q. But you accept that it was the case in the past, do
23 you?
24 A. Yes, I do. If I could follow a thought, in this
25 country we have the separation of church and State, and
26 there was a secular authority – I’m not sure how
27 appropriate it is for a secular authority to impose higher
28 standards on a Christian group because of a Christian
29 self-understanding. I think it is absolutely appropriate
30 for us – I think the questions of trust that you’ve
31 outlined are certainly true, but I believe, considering the
32 particular things, we have a right to be treated just like
33 any other Australian community or citizens. I’m not sure
34 what practical consequences might follow from that, but we
35 do live in a State which is religiously neutral.
36
37 Q. As I understand it from things you have said in the
38 past, you accept that the church’s processes of recruitment
39 and training of priests were not adequate in relation to
40 sexual matters; is that right?
41 A. That’s correct.
42
43 Q. So when we’re looking back at the past, we’re looking
44 at a circumstance where the church did not have appropriate
45 screening in place?
46 A. That’s correct, and they weren’t unique in that. It
47 was a general failure of understanding and the conspiracy
1 of silence, but that’s correct.
2
3 Q. You’re aware of the position in relation to vicarious
4 liability in Australia?
5 A. Mmm-hmm.
6
7 Q. Are you aware that there has been some disagreement
8 amongst judges about it?
9 A. In Australia or overseas?
10
11 Q. In Australia.
12 A. I’m not well versed on the differences in Australia.
13
14 Q. I’m not expecting that you would be; you understand.
15 A. Mmm-hmm.
16
17 Q. Are you aware of the position in England?
18 A. To some extent, yes, I’ve read about it.
19
20 Q. You know that it is different to Australia, don’t you?
21 A. I do.
22
23 Q. The English have moved, effectively, to impose
24 vicarious liability.
25 A. My understanding is that they’ve redefined the role of
26 the priest to something like an employer. My own view
27 would be like that of the dissenting judge in that case,
28 who said that because the paedophilia was so contrary to
29 everything that the church stood for and it wasn’t in the
30 normal – couldn’t be appropriately described as being in
31 the normal course of his duties, the imposition of
32 vicarious responsibility in that case was not appropriate.
33 I mean, I suspect it’s going to be a big issue.
34
35 The only other thing I would say is that if this is
36 changed, it should be changed right across the board, not
37 just for church organisations but for the other
38 organisations, too, and lawyers have told me that it will
39 be difficult to achieve this. But if I could go back, my
40 position is clearly that if, for example, a priest offends,
41 it is appropriate – even if you don’t accept vicarious
42 liability, it is appropriate for the remorse and sorrow of
43 the church to be expressed in monetary terms.
44
45 Q. Of course, it’s always possible to sue the priest,
46 isn’t it?
47 A. That’s correct.
1
2 Q. Do you think there might be wisdom in the Royal
3 Commission recommending that priests should be insured?
4 A. I think that might be a very useful development.
5
6 Q. And it would solve a lot of problems very quickly,
7 wouldn’t it?
8 A. I think so.
9
10 Q. And you understand that many professionals are
11 required by law to carry insurance?
12 A. Yes.
13
14 Q. The second limb of this, since we have started down
15 this path, is moral responsibility. What does that mean to
16 you?
17 A. It says, yes, it happened; it is contrary to the
18 church’s teachings; it damages and wounds, and the church
19 is obliged to acknowledge that; and it’s appropriate to
20 attempt to acknowledge that by providing counselling
21 services, spiritual direction, if it’s needed, and
22 financial help.
23
24 Q. How does one define the principles for the financial
25 help when the church accepts moral responsibility? What
26 are the principles that the financial help should rest
27 upon?
28 A. I think to some extent the Towards Healing is a bit
29 underdeveloped in that area. If you move predominantly or
30 perhaps exclusively from needs, I think you should also
31 consider the gravity of the offence. I myself support,
32 I think it is the position of the Truth, Justice and
33 Healing Council of the Catholic church. I would prefer an
34 independent body set up by the government to investigate
35 these things and recommend compensation, not damages,
36 independent, away from the church, that would bring –
37 there’s always a difficulty if you’re – even if you’re just
38 paid for by the church, that people will query the
39 independence.
40
41 Q. Cardinal, that’s the process by which one might do it,
42 and the Royal Commission needs to consider that. What I’m
43 interested in, though, is the principles that would inform
44 the money sum that you believe moral responsibility
45 requires. What are the principles that this independent
46 body, if you like, should apply?
47 A. Certainly the damage done to the spiritual,
1 psychological, human wellbeing. It’s a more difficult
2 question, but it should be considered – the capacity for
3 earnings. For two reasons that’s difficult, because
4 sometimes it’s difficult to work out to what extent the
5 crime contributed or there were other personal factors.
6
7 Q. That’s a problem the courts face every day.
8 A. That’s just what I’m pointing out. Secondly, of
9 course, some people who are very badly damaged are still
10 able to work very, very successfully. I’m pleased that I’m
11 not involved in that, but I do wish you well in that,
12 because this is an enormous expense. It’s a very good
13 thing that the victims are being heard; they have an
14 opportunity to say their piece. It will be even more
15 useful if processes can be put in place for the future
16 which will significantly reduce the hurt and the trauma.
17
18 Q. I’m sorry to press you, because I still don’t really
19 understand what you say the principles should be, but are
20 you saying that if there’s a separate body, moral
21 responsibility would extend to providing appropriate
22 compensation for income lost where it can be established
23 that the lost income was a result of the abuse by a cleric?
24 A. Yes, I think I would.
25
26 Q. That’s the common law position, isn’t it?
27 A. I’m not aware of that, but I presume – I simply don’t
28 know.
29
30 Q. You’re also indicating, as I understand it, that moral
31 responsibility would extend to a sum of money for the hurt,
32 spiritual or otherwise, that a person has suffered?
33 A. I would.
34
35 Q. Do you know that that’s a concept also recognised by
36 the civil law?
37 A. I’m not surprised.
38
39 Q. Over and above that, as I understand it, you accept
40 a need to provide the funds to meet the medical needs,
41 mostly counselling or psychiatric care; is that right?
42 A. Yes.
43
44 Q. We’re pretty much where the common law would take us;
45 do you understand that?
46 A. Yes.
47
1 | Q. | They’re the elements of a moral response? |
2 | A. | Mmm-hmm. |
3 | ||
4 | Q. | Towards Healing goes nowhere near that response, does |
5 | it? | |
6 | A. | I think that’s correct. |
7 | ||
8 | Q. | Nor does the Melbourne Response? |
9 | A. | That’s correct. |
10 | ||
11 | Q. | You’ve often described, though, the obligation of the |
12 church as being a moral one, haven’t you?
13 A. I have.
14
15 Q. Does it follow that what has been devised so far does
16 not meet that moral responsibility?
17 A. I would agree with that, but I would qualify it by
18 saying two things, that in this future system, there has to
19 be equality across the communities and institutions, and
20 the other thing I would say, while according to the
21 standards we’ve agreed on, it’s inadequate, it’s much less
22 inadequate than quite a number of other systems, other
23 systems of payments. In many cases, they’re quite
24 undeveloped. At least we’ve got something in place under
25 which we were trying to do something. We took the best
26 advice at the time. We’re probably more generous than
27 governments – that might be inaccurate. But we’re keen to
28 do better in the future.
29
30 MS FURNESS: Q. Just returning to the litigation, if we
31 can have paragraphs 43 to 44 of your statement on the
32 screen, cardinal. You say in paragraph 43 that a major
33 part in your decision to defend the legal claim was your
34 conviction that he was now seeking exorbitant damages of
35 millions of dollars by way of an ambit claim. Do you see
36 that?
37 A. Yes.
38
39 Q. What’s the reference to “ambit claim”?
40 A. Back to the exorbitant damages.
41
42 Q. What did you mean by “ambit claim”?
43 A. “Ambit” is an attempt to set a new standard as far as
44 you might possibly go beyond the present prevailing norms.
45
46 Q. But you also understood that the damages that he would
47 ever recover would be those that were determined by a court
1 as representative of the loss he’d suffered; isn’t that
2 right?
3 A. Yes, that would be correct and that would depend on
4 the losses he did suffer, on the hurt he suffered, and to
5 what extent his earning capacity was diminished.
6
7 Q. But to the extent that his earning capacity was
8 significantly diminished and therefore the amount to put
9 him in a position had he not been abused was millions of
10 dollars, that wouldn’t be exorbitant, would it; that would
11 be fair and just?
12 A. Not necessarily, because there are other factors to be
13 considered, such as his basic health and wellbeing apart
14 from this incident, and also his capacity to earn, despite
15 the terrible things that had happened to him.
16
17 Q. That’s right, but if a court determined that the loss
18 of his employment was causally related to the injury caused
19 by the sexual abuse, then the amount of money that he was
20 awarded would be an amount that was fairly in compensation
21 for what he had suffered, wouldn’t it?
22 A. Yes, and we would have endeavoured to contribute to
23 the court proceedings to try to ensure that they gave an
24 adequate and accurate answer to that, but whatever the
25 court awarded, of course, the church would pay.
26
27 Q. The reference to the damages being exorbitant and by
28 way of an ambit claim, when the claim was in relation to
29 having lost the probability of promotion, is, I suggest to
30 you, cardinal, a very emotional way of expressing what was
31 a commonplace claim for damages. What do you say to that?
32 A. I don’t think the amounts were commonplace at all.
33 They were considerably, to my knowledge, much higher than
34 was generally being paid.
35
36 THE CHAIR: Q. No, you’re not being asked that,
37 cardinal. I think you misunderstand the question.
38 A. Sorry.
39
40 Q. What you’re being asked is this, that if Mr Ellis was
41 able to prove, as you rightly point out, that his earning
42 capacity had been lost or diminished by reason of the
43 abuse, then the law would provide for him damages to
44 compensate him for that loss?
45 A. That’s right.
46
47 Q. You understand that?
1 A. Yes.
2
3 Q. When you say that he was asking for more than had been
4 commonly provided, you’re not speaking, are you, in terms
5 of other common law claims that succeed; you’re talking
6 about Towards Healing?
7 A. I thought I was talking about other common law cases
8 that succeed or are settled.
9
10 Q. Do you not know that many times every year throughout
11 Australia, cases are settled or resolved by a court where
12 people receive loss of earning capacity compensation in the
13 millions of dollars?
14 A. For sexual, paedophilia offences?
15
16 Q. For anything that causes that loss – maybe a car
17 accident, maybe an accident at work, it may be all sorts of
18 things that happen.
19 A. Mmm-hmm.
20
21 Q. And people receive compensation which can run into –
22 I’ve done it myself; I’ve awarded $10 million to people.
23 A. Yes.
24
25 Q. That happens, doesn’t it?
26 A. Yes, yes.
27
28 Q. If Mr Ellis could prove that his loss was occasioned
29 by the abuse, why should he be any differently treated to
30 someone whose loss was occasioned by a motor car accident
31 or negligence in some other way?
32 A. That wasn’t my point of comparison, but granting your
33 point, your point of comparison, you’d have to concede that
34 that is reasonable. But when I said it was exorbitant and
35 ambit, I was not comparing it to those common law cases in
36 other areas but to what I thought were the prevailing norms
37 across society for the crimes of paedophilia. In other
38 words, I —
39
40 Q. You had in mind victims compensation schemes, did you?
41 A. That was one of the points of comparison that we used
42 in Victoria. It has been pointed out, of course, that many
43 victims were not the victims of crimes.
44
45 Q. They’re the victims of crimes but not committed by the
46 State.
47 A. State, yes.
1 | ||
2 | Q. | It’s not really a fair comparison, is it? |
3 | A. | That point has been made and I’d have to take it. |
4 | ||
5 | Q. | So where do we end up – that to describe Mr Ellis’s |
6 claim, as you did, was, on reflection, not correct?
7 A. I think I correctly described my understanding. In
8 the light of our reasoning, you’d have to say that given
9 the considerations you’ve now made explicit, it could well
10 be that the claims weren’t exorbitant, but my comparison
11 was with the prevailing norms.
12
13 MS FURNESS: Q. The claims weren’t exorbitant, nor were
14 they by way of an ambit claim; isn’t that right?
15 A. In terms of the reasoning that his Honour has just
16 explained, that is correct. They weren’t the terms – that
17 wasn’t my intention. They weren’t the terms, the
18 terminology, the sense of what I was saying.
19
20 Q. Nor was Mr Ellis seeking to introduce new ways of
21 seeking very large damages, was he?
22 A. I’ve been – I did understand that at the time. I’m
23 told that that is certainly not the case.
24
25 Q. You weren’t told any of those matters, that is, that
26 they were exorbitant claims by way of an ambit claim or new
27 ways of seeking very large damages by your lawyers, were
28 you?
29 A. I think the lawyers certainly were very, very well
30 aware of the largeness of the claims, and they contrasted
31 that with their conviction, which was held up by the
32 courts, that he couldn’t succeed against the trustees.
33 Now, I presume no lawyer had told me that because they were
34 excessive earnings, therefore these were new grounds,
35 because apparently that’s not legally the case. I’m not
36 quite sure where I got that from.
37
38 Q. And they didn’t tell you they were exorbitant claims
39 or that it was an ambit claim, did they?
40 A. They might not have used those words, but they
41 certainly didn’t encourage us to think that this claim was
42 a normal one where we should settle.
43
44 Q. When you say “a normal one”, you mean they didn’t give
45 you the understanding that you would be able to settle it
46 for a small amount of money?
47 A. That’s correct.
1
2 MS FURNESS: Is that a convenient time, your Honour?
3
4 THE CHAIR: Yes.
5
6 A. Cardinal, I understand that you’re available again on
7 Wednesday; is that right?
8 A. Certainly.
9
10 Q. 10 o’clock in the morning?
11 A. Certainly.
12
13 THE CHAIR: Thank you. We’ll see you then. Otherwise,
14 we’ll sit at 10 o’clock tomorrow and talk to other people.
15
|
16 AT 4.06PM THE COMMISSION WAS ADJOURNED