Dancing on the head of a legal pin

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The following are excerpts from transcripts regarding the bizarre decision taken by various Roman Catholic institutions at the Ballarat hearings of the Australian Royal Commission not to cross examine victim witnesses on the stand. The decision was taken because, presumably, according to their lawyer Mr. Peter Gray, they “ have no wish to make the task of those witnesses in this hearing any more difficult.” However, in short order after testimony negatively implicated Cardinal Pell and the promised  failure/refusal to cross-examine the witnesses when there was ample opportunity to do so, Cardinal Pell released a pubic statement (also included below) to, amonsgt other things, ” correct the record particularly given the false and misleading headlines.”

It seems there is some sort of legal game,  hair-splitting,  and/or dancing on the head of a legal pin  regarding  denials of allegations and recollections of events? See what you think.

Ms Furness is one of the lawyers working for the commission of inquiry.

Mr. Gray, as you see below, is the lawyer representing the  Truth, Justice and Healing Council,  the Diocese of Ballarat,  the Christian Brothers and the Sisters of Nazareth

(Emphasis added)

____________________________

19 May 2015

MR GRAY: May it please the Commission, may I seek leave to appear for the Truth, Justice and Healing Council, for the Diocese of Ballarat, for the Christian Brothers and for
the Sisters of Nazareth. I appear with Mr Woods, instructed by Gilbert & Tobin.

*****

THE CHAIR: Does anyone have any questions of Mr [BAS]?

MR GRAY: Your Honour, I don’t have any questions for Mr [BAS]. It’s unlikely that I will have any questions for any of the survivor witnesses. But may I raise one matter
briefly because some of the counsel have raised it with me.

THE CHAIR: Should it be done when Mr [BAS] has been excused?

MR GRAY: By all, means if that is feasible.

THE CHAIR: Mr [BAS], no one else has any questions for you, but thank you for your statement, you are now formally excused. Thank you.

<THE WITNESS WITHDREW

MR GRAY: Briefly, Your Honours and Commissioner, a number of the counsel representing survivor witnesses have asked me and those assisting me whether it is likely that we would be questioning any of their clients. I hope it would be of assistance if I say, if it’s of assistance to them and the Commission, briefly what my client’s position is in
that regard, which is this:

The church parties are very conscious of the importance of these hearings and of the enormous difficulties faced by the witnesses who have come forward to give their evidence.

My clients have no wish to make the task of those witnesses in this hearing any more difficult. Their courage deserves the utmost respect.

The church parties see these hearings primarily as an opportunity to listen to the witnesses and to truly hear what they say. In general, they do not intend to question witnesses about the detail of their recollections of various events, even where, for instance, someone associated with a church party may have a different recollection of an event or conversation. In that situation, I expect that that person will in due course provide the Commission with his or her own recollection.

In those circumstances, as I say, I have no questions for Mr [BAS] and am unlikely to have questions for the other survivor witnesses.

 20 May 2015

MR GRAY: Your Honour, I have no questions for Mr Hill, but the Sisters of Nazareth who ran the St Joseph’s Home in the 1940s and 1950s have asked me to say two things at this stage, if I may.

Firstly, the sisters received Mr Hill’s statement only very recently, and he has not previously made a complaint to the Sisters.

Secondly, the Sisters wish to say to Mr Hill and to Your Honours and the Commissioner, that they support his allegations being fully investigated and that, although Mr Hill has so far chosen not to contact the Sisters, they are very willing to meet with him if he would like to. If the Commission pleases.

THE WITNESS: It’s very hard to understand, I could hardly hear him.

THE CHAIR: You couldn’t hear that?

A. No.

THE CHAIR: I’m sorry. Would you like to say it again, Mr Gray?

MR GRAY: Happy to do so, Your Honour.

THE CHAIR: I think you need to make sure that microphone is picking you up.

THE WITNESS: He had a paper in front of him.

MR GRAY: Can you hear me, Mr Hill?

A. Now I can, yes.

MR GRAY: The Sisters of Nazareth, whom I’m representing today, have asked me to say two things, and the Commission has allowed me to say it.

The first is that the Sisters received your statement to the Royal Commission only very recently and, as you know, you have not previously made a complaint to the Sisters.

However, notwithstanding that, the Sisters wish to say to you, through me today and to the Commission, that they support your allegations being fully investigated, and that, although you have chosen so far not to contact the Sisters, they are very willing to meet with you if you should like to. Those are the two things that I said. If the Commission pleases.

THE CHAIR: Yes.

THE WITNESS: Can I reply to that?

THE CHAIR: Yes, Mr Hill.

THE WITNESS: Because, when I was – I come over to my brother’s place from Western Australia as a surprise birthday party, my 70th birthday party. One of the
relatives I hadn’t met for a long time was one of my sister’s sons come down from Queensland for a birthday party.

We arranged to go out to Nazareth House to show them where their mother was brought up. It was all arranged to go in, we were going to have a cup of coffee or cup of tea or whatever. I had come over to the Victorian Parliamentary Committee Senate Inquiry, and from that we were banned from going over to Nazareth House; the sisters didn’t want to have anything to do with us.

So, I’m just replying to what you said then. If they wanted to meet me now, how come they didn’t want to meet me when I was 70?

THE CHAIR: Very well.

No doubt, Mr Hill, if you wanted to speak to Mr Gray after this hearing, he would welcome you having that discussion, but it’s a matter for you, alright?

THE WITNESS: I just wanted to say that.

THE CHAIR: I understand. The offer is there for you to meet if you wish to meet, but that’s a matter for you, alright. Otherwise, thank you for your evidence, you are now formally excused.
(2)
After Mr. Green testimony re Pell etc

THE CHAIR: Does anyone else have any questions? Mr Gray, I should tell you that I would anticipate we’ll be asked to make findings about some of the matters that Mr Green has included in his statement. It’s a matter for you and those instructing you, but I should put you on notice that that’s a real possibility.

MR GRAY: Yes, Your Honour.

I thank you, Your Honour.

My clients have taken the position that I advised yesterday, in the knowledge of the way the Royal Commission —

THE CHAIR: Well, I understand that, but I want to make clear to you that, although we normally don’t make findings as to whether or not someone was abused, in relation to the
allegation that Mr Green makes in relation to Cardinal Pell, which of course goes to the church’s response to allegations, it’s in a wholly different category.

MR GRAY: Yes.

THE CHAIR: And I just think it’s necessary that you understand and those instructing you understand that I anticipate that we’ll be asked to make findings about what he has to say.

MR GRAY: Yes.

THE CHAIR: All I need to say beyond that is, do you still not wish to ask him any questions?

MR GRAY: I don’t wish to ask him any questions. As Your Honour knows and the Commission knows, the Cardinal has not been asked to put on a statement in this matter; he undoubtedly will do so if he’s asked to.

THE CHAIR: Mr Gray, you can anticipate that he will be asked to.

MR GRAY: Yes, we do anticipate that, Your Honour, and when that happens he will certainly do so.

THE CHAIR: Yes, but that doesn’t take away from the point that I seek to make to you: now is the chance that you have to ask Mr Green questions if it is to be put to him that
his recollection is not correct.

MR GRAY: Your Honour, we will not be putting to Mr Green that he is not to be believed, which is the matter discussed or covered in the practice guideline.

Cardinal Pell, as Mr Green has already noted in his statement, has a different recollection; Mr Green has acknowledged that, and that no doubt will be what the Cardinal says.

THE CHAIR: The position is clear.

MR GRAY: Yes, Your Honour.

THE CHAIR: It’s a matter for you and those instructing you.

*****

THE CHAIR: Does anyone else have any questions?

Mr Gray, I need to say the same to you about the allegations in relation to Cardinal Pell as I said to you before lunch. Do you understand?

MR GRAY: Yes, Your Honour. I thank you for that reminder. Our position, as I said, is that I explained yesterday that the stance my clients were taking to this hearing would be that in general we would not question witnesses whose task is difficult enough as it is.

In the case of the telephone conversation about which Mr Ridsdale has given evidence, the Commission is aware that the Cardinal has publicly and repeatedly said that his
recollection of that conversation is quite different. If and when the Commission asks the Cardinal to provide a statement, which we assume will happen, I expect that he will say the same thing.

THE CHAIR: Two things about that: yes, we will ask, but as you appreciate, you could have the Cardinal make a statement yourselves. That’s a matter for you, but he will be asked. But there should be no misunderstanding, merely because of the stance which the church has otherwise taken, when it comes to issues of the church’s response or individuals from the church’s response to abuse, they are factual matters that we must investigate and determine.

MR GRAY: We understand that, Your Honour, and we will approach it in the way that I have mentioned.

THE CHAIR: Thank you. Yes.

*****

THE CHAIR: …Does anyone else have any questions of Ms Watson?

I just need to say the same thing, Mr Gray, in relation to Bishop Connors and Bishop Bird.

MR GRAY: Yes, Your Honour, and, as I’ve said, the approach that my clients have taken is an approach that applies to all witnesses, including those yesterday.

THE CHAIR: It’s a matter for your client, but I need to say this to you each time lest there be any misunderstanding in relation to what the Commission may do by way of making findings.

MR GRAY: Yes. I’m just observing, Your Honour, that the same issue did arise a number of times yesterday before Your Honour raised it with me today, and the same approach applies; that is, that my clients have taken the view that they do not wish to add to the distress of the witnesses in this hearing, where it’s difficult enough, and where necessary, as in some places it plainly is, the people in question, whether it be Bishop Connors or anyone else, will make their response known.

My clients, Your Honour, as the Commission will be aware, have had these statements from the witnesses only since about late last week.

THE CHAIR: Mr Gray, you’ve had them for time enough to have sought instructions, but those instructing you should understand that it’s not a consideration of relevance to any finding we might make that the church has adopted the stance which it has.

MR GRAY: No, no, I understand that.

THE CHAIR: It’s not relevant to the findings which we may be asked to make or indeed make.

MR GRAY: I understand that, Your Honour, but the only observation I would make is that my clients trust in good faith and without any doubt that the Commission would not
make findings against anyone, whether it be a church person or anyone else, without giving that person the opportunity to be heard.

THE CHAIR: That’s precisely why I’m raising this with you now.

MR GRAY: No, I’m talking about a statement from the person.

THE CHAIR: No, a statement is one thing, but if you want to challenge, or those who instruct you want to challenge what a witness says on a particular issue, that is another
thing.

MR GRAY: It is, Your Honour, I’m sorry to be taking the time. The practice guideline requires us to challenge someone where it is to be submitted that that person is not to be believed or has been deliberately untruthful. I do not expect to be making any such submission in relation to any of the witnesses who have given evidence.

THE CHAIR: The consequence which will flow from that, in the most likely event, is the witness will be believed and that will found a finding.

MR GRAY: Well, I don’t want to traverse that, Your Honour, but there will be other evidence, one expects, which no doubt the Commission will consider but I don’t seek to say any more about it.

THE CHAIR: Well, Mr Gray, I’m sure you understand what I’m saying.

MR GRAY: Yes, Your Honour.

THE CHAIR: I’m sure those instructing you do. There must be no misunderstanding about this, these are significant and serious questions as to the way your client has responded to the allegations. That’s what it comes down to and they are issues which we will have to determine having regard to the evidence before us.

But, if the proposition from your client is that all of these witnesses should be believed, you can appreciate that it’s likely that it might be said in relation to evidence that you might bring, by others, it might be submitted that they shouldn’t be believed.

Now, that’s a matter for you and your clients.

MR GRAY: The submission that I have anticipated,Your Honour, is not that they should be believed if their evidence is different from something that one of my – that
somebody from one of my clients ultimately says. What I’m observing at the moment is that I do not have instructions at the moment and don’t expect to have them to challenge
any of these witnesses on the basis that they are being deliberately untruthful.

THE CHAIR: Well, I’ve said enough, I think, Mr Gray.

MR GRAY: Yes, Your Honour.

*****

MS FURNESS: Your Honour, there’s just one additional matter. My friend, Mr Gray, was referring to the practice guidelines and the one in particular he was referring to was 67, and I’ll read it:

Except as set out below, the Royal Commission will not apply the rule in Browne v Dunn. If the Royal Commission is to be invited to disbelief a witness, the material grounds upon which it is said that the evidence should be disbelieved should be put to the witness so that the witness may have an opportunity to offer an
explanation.

There’s an additional subparagraph of that guideline, and that is:

The Royal Commission expects that, where it is contended that deliberately false evidence has been given, or that there has been a mistake on the part of the witness on a significant issue, the grounds of such contention will be put.

I raise that, Your Honour, in order that my friend understands that 67(b) of the guideline may well be applicable to the matters Your Honour has raised earlier.

THE CHAIR: Yes, well, the position I think is now crystal clear, or it should be. Very well, 10 o’clock in the morning.

20 May Cardinal Pell issues statement

Like everyone who has been following the Royal Commission’s hearings in Ballarat this week, I have been horrified once again by survivors’ accounts of the abuse they have suffered. Also the terrible impact it has had on their lives and families and the Catholic community of Ballarat. The suicide of so many victims is an enormous tragedy. The crimes committed against them by priests and brothers are profoundly evil and completely repugnant to me.

A number of claims have been made concerning my own response during these years. Many of the issues have already been addressed by me in the Victorian Parliamentary Inquiry in 2013, and my submission to that inquiry, and a transcript of my evidence, are available on the Victorian Parliament’s website. I stand by the statements I made to the Victorian Parliament.

I also note that under its terms of reference the Royal Commission can access all material from previous inquiries, including the Victorian Inquiry, which dealt with these matters extensively.

The Commission stated today that it will request a statement from me.

Over the last 24 hours I have been accused of being complicit in the moving of a known paedophile, of ignoring a victim’s complaint, and of bribery. These matters again require an immediate response and it is important to correct the record particularly given the false and misleading headlines.

Firstly, while out of the greatest respect for Mr Green, as I have stated previously, I have no recollection of a conversation with Mr Green in 1974, more than 40 years ago. Having recently read his statement to the Commission I still cannot remember Mr. Green or the conversation. To the best of my belief, this conversation did not happen. I stand by my previous statements.

Secondly, I never moved Ridsdale out of Mortlake Parish. I never moved him anywhere. I would never have condoned or participated in a decision to transfer Ridsdale in the knowledge that he had abused children, and I did not do so. I was a member of the College of Consultors for Ballarat from 1977 until I left Ballarat in 1984. Membership of the Consultors gave me no authority over Gerald Ridsdale or any other priest in Ballarat.

My recollection is that Bishop Mulkearns did not raise any paedophilia allegations against Ridsdale at the Consultors meetings I attended, or at any time before or after such meetings.

Contrary to some media reports, minutes of the meetings of the Consultors are not “secret” and were produced to the Victorian Parliamentary Inquiry which did not raise them in the hearings or in their final report. Indeed, I addressed these meetings in my submission to the Victorian Inquiry.

Finally, I was and remain extremely sympathetic to David Ridsdale who because of his uncle suffered horrible abuse. I continue to regret the misunderstanding between us. At no time did I attempt to bribe David Ridsdale or his family or offer any financial inducements for him to be silent. At the time of our discussion the police were already aware of allegations against Gerald Ridsdale and were investigating. Then, and now, I supported these police investigations. I have previously made a sworn denial of these allegations and I reiterate that denial.

I am committed to complete cooperation with the Royal Commission. I will address in full all matters it wishes to raise in any statement requested from me before I make any further comment.

I have the deepest sympathy for the victims of abuse, their families and the community of Ballarat for what they have suffered. Once again, I will answer allegations and criticisms of my behaviour openly and honestly.

 21 May 2015

  THE CHAIR: Yes, Ms Furness.

MS FURNESS: Your Honour, a letter was received overnight from those acting on behalf of various church parties, and the letter is relevant to the matters that Your Honour raised yesterday with Mr Gray and the interpretation particularly of paragraph 67 of the practice guidelines.

In order for this matter to be addressed, I seek to tender that letter. Copies are being handed up to the bench

EXHIBIT #28-19 LETTER FROM PARTIES ACTING ON BEHALF OF VARIOUS CHURCH PARTIES

MS FURNESS: Thank you, Your Honour.

MS FURNESS: Thank you, Your Honour.

THE CHAIR: You don’t want to say anything further in relation to the letter?

MS FURNESS: Your Honour, as I indicated yesterday, my submission is that s.67(b) can be and, in my submission, should be interpreted differently from that set out by those representing the church parties yesterday, and that matter is raised in the second page about halfway down of this letter.

It’s suggested in this letter that, in the circumstances of the Royal Commission taking a different view, contact was made overnight with some of the people concerned, including Cardinal Pell. What’s attached to the letter is a statement from Cardinal Pell where, among other matters, in respect of Mr Green he says the conversation that Mr Green gave evidence of yesterday did not happen. In respect of the evidence Mr Ridsdale gave yesterday, he says:

I have previously made a sworn denial of these allegations and I reiterate that denial.

Now, no other material has been provided in the context that the church parties referred to some of the people, including Cardinal Pell, so my submission can only be in respect of Cardinal Pell. In my submission, that statement which has been provided to the Royal Commission is one of denial rather than difference of recollection and, in my submission, the contents of that statement would call into play paragraph 67(a). So, the issue of whether or not paragraph (b) of 67 should be read in a particular way becomes somewhat redundant.

THE CHAIR: Mr Gray, do you want to say anything about this letter?

MR GRAY: No, Your Honour, the letter speaks for itself and that is our position on my instructions.

THE CHAIR: I just need to say a couple of things. Firstly, the letter has, it would seem to us, within it a misunderstanding.

As Ms Furness has just indicated, the position as we apprehend it may be is that there will be direct conflict between witnesses as to whether or not a particular event occurred or a particular statement was made, either because there’s been a mistake, or because one or other may not be telling the truth and should be disbelieved; then both limbs of clause 67 will operate.

Maybe that hadn’t been appreciated, but it should be clearly understood.

Secondly, the letter raises the question of the process that’s been followed by the Commission in previous case studies. Nothing which we have done in order to
progress the case studies, the public hearings, in an orderly way diminishes or cuts across the right of any party to seek to have evidence tendered or a witness called.

It’s not alone a matter for the Commission to seek out evidence or seek out witnesses. If a party wishes evidence to be tendered or a witness called, then that is their right, and that right is exercised by asking Counsel Assisting to make appropriate arrangements for that to happen.

However, in the ordinary course, in order for the orderly running of the Commission’s business, it has been our approach in the past, and will continue to be, that we will seek out witnesses and seek from them statements so that, as I say, we may proceed in an orderly fashion.

The fact that prospective witnesses in this Case Study have not yet been asked for a statement is a reflection of two things: firstly, as with any Royal Commission process, we are engaged in an investigation. This is not a process akin to a conventional trial and all
the evidence is necessarily collected before the case begins; this is an investigation.

As you know, and everyone knows, this Case Study is proceeding by way of two separated public hearings. No one should assume that that’s been done for other than a
deliberate purpose, and I stress again, this is an investigation; that’s what a Royal Commission does.

Thirdly, Mr Gray, I need to confirm, if it’s not already plain, that just because the church parties have chosen to conduct their case in any of our Case Study hearings in a particular way and not ask witnesses questions is not a matter that we will have regard to when making any findings that we believe is appropriate to make when we complete our reports. It’s a matter for you and those instructing you as to the course that you take, but
the practice directions and what I have indicated yesterday and confirm again this morning, I hope makes plain that, merely because the church chooses to conduct its case in a particular way, that does not bind the Commission in any way at all in relation to the approach it will take to the findings which it might make.

MR GRAY: Thank you, Your Honour. We’ve done our best to put forward our appreciation of the position as it presently stands in the letter, and I have heard what Your Honour has said.

THE CHAIR: What I’m saying plainly is, the letter does not reflect the process by which the Commission will pursue its task and it would seem that there’s been some
misunderstandings that are reflected in the letter, and I trust those misunderstandings have now been swept away.

MR GRAY: Could I just ask one question, Your Honour, in case there’s another misunderstanding on my part: is the Commission indicating that findings would be made before the second set of hearings?

THE CHAIR: No, of course not. It’s one investigation, one Case Study proceeding by way of two sets or two periods of public hearings.

I stress again, as I stressed yesterday, that no one will be denied procedural fairness, but that doesn’t mean that the investigative process won’t take the course which the Commission has decided it should take. All we will do is make sure that at the end of the day, and before we make any findings, everyone has been afforded procedural fairness

MR GRAY: Thank you, Your Honour.

THE CHAIR: Yes, Ms Furness.

MS FURNESS: Your Honour, might I just raise one additional matter in relation to the letter which is now exhibit 28-19.

There is reference to the fact that the church parties were provided with witness statements after witnesses associated with the church parties had already provided
their statements, with one exception. The word “after” is underlined and I can only take that as being somewhat of a criticism of the process followed.

As Counsel Assisting, can I indicate that the way in which material is served on the parties depends upon the stage at which any investigation has reached, and there is
no set practice that will be unwaveringly followed in respect to the service of material.

THE CHAIR: Thank you for that. It just leads me to repeat the observation that this is an investigation and the process by which that investigation is undertaken is a matter for the Commissioners.

At the end of the day, the necessity and the obligation of the Commissioners, is to afford parties procedural fairness, but that does not mean that in the course of the investigation any particular pattern or internal procedure will be followed. What it means though is that, at the end of the day and before we make findings, procedural fairness and an opportunity to respond and make submissions is afforded to any party. Yes.

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4 Responses to Dancing on the head of a legal pin

  1. Sylvia says:

    Is this cross-examination stand-down all hinging on a strange interpretation of the guidelines, part of which which Mr. Gray read into the record:

    If the Royal Commission is to be invited to disbelief a witness, the material grounds upon which it is said that the evidence should be disbelieved should be put to the witness so that the witness may have an opportunity to offer an explanation.

    After a read of Cardinal Pell’s press release, I’d say he wants us and the commission to disbelieve the witness. So why did his lawyer not cross- examine the witness? Why did Mr. Gray forgo that opportunity>

    Why the talk from Cardinal Pell which reduces this all to no more than a”misunderstanding” between he and David Risdale? Is this a novel legal approach to call someone a liar without actually calling them a liar?

    There’s something afoot here… I smell a rat. These people are too smart and too familiar with the law to make mistakes. There is a method to the madness. What is it?

    By the way, hearings resume this evening at 8 pm EST (21 May) and 10 am AEST (22 May) , CLick here to access the screen for live stream coverage

  2. Sylvia says:

    A Brother Peter Clinch is testifying. I think he must be one of the Christian Brothers?

  3. Sylvia says:

    Yes, Peter Clinch is the Provincial of the Christian Brothers for Ballarat Oceana, meaning he is the brother in charge

    in that area of Christian Brothers in Australia, New Zealand, Papua New Guinea, Timor-Leste and the Philippines He has only been in that position for a short time – doesn’t have answers to a multitude of questions The Ocean Province). There are 359 Brothers in the province. The head of the Christian Brothers worldwide is a Canadian , Brother Hugh O’Neill.

    Brother Clinch is turning himself inside out to present as sympathetic to victims. That’s good. Perhaps change is finally in the air? Time of course alone will tell.

    They are on a short break now.

  4. Mike Mc says:

    Wow…I just took the time (an hr) to read Br Clinch’s Q&A interview by the Panel. Quite a lot to digest. The average age of the order is now 75. He sees their order becoming extinct.

    I bet when he joined in ’72 he never envisioned this. He is now Provincial and yet he says:

    Q. When was it that you first came to understand that
    11 there were an increasing number of complaints of child
    12 sexual abuse against members of your order?
    13 A. I’ve got the clear recollection, the date is a bit
    14 furry, but I’d say it was around the early 1990s, about
    15 1993, and I was in Melbourne at the time, and just seeing
    16 the notifications that became very, very public from
    17 pages of newspapers and it was just so obvious.
    18
    19 Q. So it didn’t come to your attention as a member of the
    20 order, it came to your attention through reading the media?
    21 A. That would be correct, or the starkness of it and the
    22 numeral, the number, yeah.

    Can you imagine???……it was the newspapers he says that broke the horrid news. I find it hard to believe the knowledge of these abusive Brothers was not known within the ranks. And when they did they certainly didn’t expel anyone immediately.

    He addressed no one going into the order these days because of changing times but it’s obvious no one wants to be connected with this order. It seems there are a few African novices but that’s obvious why that is happening.

    This Brother Clinch explains things that are rather unbelievable in my opinion.

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