ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE
Public Hearing – Case Study 16 (Day C040)
Court 3.3, County Court of Victoria
250 William Street, Melbourne
On Wednesday, 20 August 2014 at 10.00am
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: Ms Furness, I understand that it is proposed
2 that Cardinal Pell will give evidence tomorrow afternoon by
3 videolink at 4 o’clock; is that right?
5 MS FURNESS: That’s right, Your Honour. 4 pm our time is
6 I understand 8 am the Cardinal’s time in Rome.
8 THE CHAIR: I don’t know whether you have had the chance
9 to discuss with your colleagues the timing for this, but we
10 will need to have some idea from all of you how long you
11 believe you might need with Cardinal Pell. It will be
12 8 o’clock in the morning in Rome, but given that we are
13 sitting all day tomorrow, my sense of it is that we should
14 probably aim to at least finish tomorrow at about
15 8 o’clock. I don’t know whether that would allow enough
16 time for everyone to ask Cardinal Pell what they want to
17 ask him, but can I ask that counsel might discuss the
18 matter and perhaps after morning tea give me some
19 indication as to whether or not four hours – there will
20 have to be a break, I would imagine, for 20 minutes or so
21 in the middle of that – would be sufficient or whether we
22 would need to plan for a second occasion.
24 MS FURNESS: Your Honour, I have had the opportunity to
25 speak to a number of those at the Bar table and I think
26 some certainly are in the position to indicate to
27 Your Honour now and I only haven’t heard from those
28 representing the Archdiocese of Melbourne and the Truth,
29 Justice and Healing Council.
31 THE CHAIR: I wonder whether you might talk to each other
32 in morning tea and just let me know what the expectation
35 MS FURNESS: Certainly.
37 THE CHAIR: No one is going to be bound to what they say,
38 but we need to have some understanding so we can
39 appropriately plan here, but also that those in Rome know
40 what can be expected.
42 MS FURNESS: Thank you, Your Honour.
44 THE CHAIR: Yes, Ms Furness.
46 <PETER JOHN O’CALLAGHAN, recalled: [10.07am]
1 <EXAMINATION BY MS FURNESS:
3 MS FURNESS: Q. Mr O’Callaghan, you were asked to
4 consider and provide various pieces of information
5 overnight. I understand from those representing you that
6 you are not yet in a position to provide us with figures
7 that they are comfortable are accurate?
8 A. Yes, that’s so. I rely upon others to do the
9 statistical work and I would seek the indulgence of
10 providing that to you fairly shortly in a documentary form
11 which you can consider and if you require anything to be
12 done about it, we will do it.
14 Q. Thank you. It may be, Mr O’Callaghan, that we need
15 you to return depending upon the material?
16 A. Certainly.
18 Q. If that’s understood?
19 A. Yes.
21 Q. When we adjourned yesterday, Mr O’Callaghan, I was
22 asking you about Mr Leder’s document which appears at tab
23 190, and we might have that on the screen. You indicated
24 that while you couldn’t then help us with how it came about
25 that you gave the information in that second paragraph to
26 Mr Leder, you did tell us with the assistance of an
27 unredacted copy that the information was obtained by you
28 during the course of investigating a complaint made by the
29 O’Donnell victim whose name is redacted; is that right?
30 A. That is correct. Overnight I have endeavoured to find
31 any trace of my knowledge of that conversation and
32 I haven’t, and I have no recollection of it. But I did see
33 on the file a police report which contains that extract,
34 which is not in respect of the complaint that I was dealing
35 with, but in respect of another complaint.
37 Q. But you are satisfied that the information that’s set
38 out in that paragraph was provided by you and your source
39 was a previous O’Donnell complainant?
40 A. Yes, that’s – well, I can’t be. I have no
41 recollection of providing it, but I will have to accept
42 that must have happened.
44 Q. Thank you. If we can just turn to the previous
45 document, which is 189. No doubt Mr Leder will be asked
46 about these matters as well, but this is a file note.
47 Perhaps if we could turn to the next page. This is a file
1 note in Mr Leder’s handwriting which we asked him to
2 transcribe for us, which he did, and this is the
3 transcribed note he provided. Do you see what appears from
4 this file note is that Kevin Lyons contacted Mr Leder and
5 I think you indicated that you understood Mr Lyons was
6 junior counsel for the various defendants in the litigation
7 brought by the Fosters?
8 A. Yes.
10 Q. And then on 30 November there’s reference to what
11 appears to be a telephone call to you?
12 A. Yes.
14 Q. And then various matters set out thereunder?
15 A. Yes. I have no doubt that, because I became aware of
16 that, that Mr Leder certainly must have rung me, but I have
17 no recollection of that conversation.
19 Q. And you have no record, I take it, of having sought
20 from the complainant, the O’Donnell victim, any consent for
21 providing information obtained during the course of the
22 investigation of his complaint to Mr Leder?
23 A. No.
25 Q. No?
26 A. No.
28 Q. Thank you. In accordance with your terms and
29 conditions of appointment you were to keep all matters
30 confidential and to consider them confidential and
31 privileged, were you not?
32 A. Yes.
34 Q. In those circumstances why did you provide this
35 information to Mr Leder?
36 A. I have no explanation.
38 Q. I beg your pardon?
39 A. I have no explanation.
41 Q. Can I suggest to you, Mr O’Callaghan, that you should
42 not have, consistent with your appointment?
43 A. I take that suggestion.
45 Q. Do you accept that?
46 A. Yes, I do.
1 Q. Turning to tab 225, we are getting to the modern day,
2 Mr O’Callaghan, and we have emails rather than facsimiles,
3 and do you see at the bottom of this page the first of the
4 emails is from what appears to be a journalist at the
5 Herald-Sun to James O’Farrell?
6 A. Yes, I see that.
8 Q. And James O’Farrell, we can tell from the later email,
9 is the director of Catholic communications for the Catholic
10 Archdiocese of Melbourne?
11 A. Yes.
13 Q. And it appears that the journalist is seeking from
14 Mr O’Farrell answers to various questions in relation to
15 aspects of the Fosters’ litigation?
16 A. Apparently.
18 Q. You have read this as part of preparing to give
19 evidence, Mr O’Callaghan?
20 A. I think I have that document, but I can’t recall
21 looking at it recently.
23 Q. So you accept that there seems to be a letter from the
24 journalist to Mr O’Farrell and then if we can turn to the
25 next couple of pages you see there’s a list of questions
26 set out and some answers below?
27 A. Yes.
29 Q. If we can then turn to tab 224, Ms Stefanile was your
30 secretary, was she, at the time?
31 A. She was and she is.
33 Q. What this document appears to be, can I suggest,
34 Mr O’Callaghan, is your suggested answers to the questions
35 by the journalist; do you accept that?
36 A. Yes.
38 Q. In relation to the second matter, do you see that with
39 paragraph 2?
40 A. Yes.
42 Q. If we can just scroll up so that’s on the screen,
43 that’s in relation to the litigation that was taken by the
44 Fosters and defended by the Archdiocese in the first
45 instance; do you understand that?
46 A. Yes.
1 Q. You there refer to, “In its defence the Church did not
2 admit” – in quotes – “that the abuse took place in
3 precisely the manner alleged in the statement of claim”?
4 A. Yes.
6 Q. Firstly, can I ask you, Mr O’Callaghan, why you were
7 providing to the director of Catholic communications as
8 well as to Mr Leder suggested answers to a journalist’s
10 A. I believe that there was also some media referring to
11 me and I was – I don’t deal with that, I don’t think, here,
12 but I was giving my explanation as to what I thought was
13 the position and how it should be described.
15 Q. But in this case the questions were not related to
16 your conduct, were they?
17 A. No, certainly not in this document.
19 Q. I beg your pardon?
20 A. Certainly not in this document.
22 Q. Thank you. And by reference to paragraph 2 you are
23 providing draft or suggested answers to a question in
24 relation to the litigation, are you not?
25 A. Yes.
27 Q. That was not your business, was it, Mr O’Callaghan?
28 A. Strictly speaking, no.
30 Q. Why did you?
31 A. I thought it was reasonable to do so.
33 Q. I beg your pardon?
34 A. I thought it was reasonable to do so.
36 Q. Well, you understood that the purpose of creating the
37 office of Independent Commissioner and indeed calling that
38 person Independent Commissioner was that it was intended
39 that they be quite separate from the Archdiocese?
40 A. Indeed, but here we have a situation where there’s
41 great media interest in these matters and I was, if not in
42 this document, referred to in other documents.
44 Q. We are talking about this document, you understand,
45 Mr O’Callaghan?
46 A. Yes, I accept what you say.
1 Q. I beg your pardon?
2 A. I accept what you say.
4 Q. That it wasn’t your business?
5 A. Not strictly speaking, no.
7 Q. Not speaking in any sense, Mr O’Callaghan?
8 A. Not in any sense in relation to an obligation to give
11 Q. Why did you involve yourself in providing to the
12 Archdiocese of Melbourne suggested answers in respect of
13 the litigation in circumstances where you had no proper
14 role in the litigation?
15 A. My answer to that is I was, not in this document, but
16 in other documents or other media reports referred to and
17 insofar as I could assist in providing what I regarded as
18 the correct response to that, I did.
20 Q. Just coming down to answer 12 on that page, that’s in
21 respect of going to the police. What you note there in
22 relation to you is that, “The Independent Commissioner
23 always informs victims they have the right to go to the
24 police and he encourages the exercise of that right.” Do
25 you see that?
26 A. Yes.
28 Q. The word “encourages” the exercise of that right was
29 in place from the beginning of the Melbourne Response,
30 wasn’t it?
31 A. Yes, prefaced by “appropriately encourage”.
33 Q. Yes, and I think we dealt with that yesterday that
34 “appropriately” means in circumstances not where the
35 complainant has clearly indicated they don’t want to go to
36 the police?
37 A. Yes.
39 Q. Thank you. Now can we turn to Mr Hersbach and your
40 involvement with him. Perhaps if we could first go to tab
1 bottom of the screen that he or they “have a continuing and
2 unfettered right to report the matter to the police”?
3 A. Yes.
5 Q. And saying that you “encourage the exercise of that
7 A. Yes.
9 Q. And then you continue, if we can scroll up:
11 In your case however with respect to the
12 unsurprising haziness of your memory there
13 would not appear to be much point in your
14 taking the matter to the police.
16 Do you see that?
17 A. Yes.
19 Q. Firstly, Mr O’Callaghan, why did you take it upon
20 yourself as part of your role to give advice to
21 complainants as to your view of the prospects of any police
23 A. I considered I had a duty to inform a victim of all
24 the parameters and combinations which could arise and I was
25 referring there to his statements to me that justified his
26 hazy memory. I pointed that out and then I said, “It’s a
27 matter for you,” et cetera.
29 Q. Your job was not to just be neutral but to encourage
30 complainants to go to the police; that’s right?
31 A. Yes, to encourage them to go to the police. But if
32 I was of or held a reasonable opinion that they may have
33 difficulty in sustaining that approach to the police
34 I thought it appropriate to indicate so.
36 Q. In your varied discussions with the police firstly in
37 1996 and then in 2009 and also in 2011 there is no
38 reference to the material that was generated from those
39 discussions as to your, as you call it, duty or obligation
40 to inform them as to, that is complainants, as to your view
41 of what might happen if they went to the police, is there?
42 A. No, there’s not. But it’s a duty that I considered
43 I was subject to.
45 Q. And that duty was not based on anything in your terms
46 and conditions of appointment?
47 A. No.
2 Q. Nor based on any discussions with the police?
3 A. No, it was based upon what I saw my position as
4 recommending a course of action and if I recommended a
5 course of action without referring to genuine possibilities
6 of what might occur, I would have been remiss.
8 Q. But your job wasn’t to recommend anything except to
9 the Archdiocese in respect of an active ministry priest?
10 A. If a victim came before me pursuant to the terms and
11 conditions of appointment, but I have in my apprehension a
12 duty to act in a responsible and careful way and not
13 negligently. For instance, if I failed to bring to the
14 attention of a victim what might or might not happen, he
15 could well or she could well complain that I had an
16 obligation to do so.
18 Q. Your obligation was to encourage the exercise of that
19 right, wasn’t it?
20 A. Yes.
22 Q. That was the extent of your obligation, I suggest to
23 you, Mr O’Callaghan?
24 A. Well, that’s where, if I might say, you and I differ.
26 Q. And in terms of your letter to Mr Hersbach you first
27 of all said, “There would not appear to be much point in
28 your taking the matter to the police” because of his
30 A. Yes.
32 Q. Then you say in the last paragraph, “Assuming that you
33 are not going to take the matter to the police, I advise
34 you that I am satisfied” that he was a victim of sexual
35 abuse. Now, that advice you gave to him was not and could
36 not be based on whether or not he went to the police; that
37 advice was independent of him going to the police, was it
39 A. It was on the assumption that he wasn’t going to the
42 Q. But even if he went to the police, your job was to
43 still indicate to him whether or not you were satisfied he
44 was a victim of abuse?
45 A. Yes, but if he went to the police I would take no
46 further steps.
1 Q. Yes, you would take no further steps in furtherance of
2 your finding, but you wouldn’t take any further steps in
3 terms of making the finding, would you?
4 A. Yes, I would.
6 Q. So you only made the finding in relation to
7 Mr Hersbach because you assumed, given your advice to him,
8 that there wouldn’t appear to be much point —
9 A. I indicated what my finding would be and the
10 distinction that I was making it was a finding of sexual
11 abuse as defined, i.e. that that conduct of masturbating in
12 his presence did obviously constitute a breach of the
13 proper priestly obligations to act in a proper manner.
15 Q. If we can turn then to tab 232?
16 A. Can I just add to that?
18 Q. Certainly?
19 A. Had Mr Hersbach told me when I saw him what now
20 appears in his statement, I would have had an entirely
21 different attitude; that is, in his statement he states
22 that he was abused on a number of occasions and the last
23 one was when in Rome and it’s on the – and I would have had
24 a completely different consideration of that had he told me
25 at the time about going to the police, about the point of
26 going to the police.
28 Q. You would have thought that there were better
29 prospects; is that the case?
30 A. Absolutely.
32 Q. You don’t consider it is the role of the police to
33 tell a complainant what their prospects are and what the
34 police may or may not do with it rather than you?
35 A. We’re talking about – if you are talking about —
37 Q. I’m talking about in any event, Mr O’Callaghan, with a
38 complainant. Isn’t it the role of the police to talk to
39 complainants about what they can and can’t do for them and
40 what is likely to happen?
41 A. That would be the role of the police if the person
42 goes to the police.
44 Q. Yes, and if the person is told that the police are
45 best placed to tell them prospects, then it might be more
46 likely that they go there. What do you say to that?
47 A. Yes, certainly.
2 Q. The letter on the screen is dated March 1997. So
3 that’s some nine years earlier; do you see that?
4 A. Yes.
6 Q. And this is from you to the then Vicar General in
7 relation to Father Rubeo?
8 A. Yes.
10 Q. You were reporting to the Archbishop in respect of
11 what should be done, if I can put it in those terms, in
12 respect of Father Rubeo’s ministry?
13 A. Yes.
15 Q. And this is the sort of recommendation that you were
16 asked to make pursuant to your terms and conditions of
17 appointment; isn’t that right?
18 A. Would you just scroll up a bit so I can —
20 Q. Certainly. We can perhaps give you a hard copy if
21 that’s easier?
22 A. No, that’s all right.
24 Q. If we can keep scrolling?
25 A. Yes.
27 Q. And then over to the second page?
28 A. Yes, that’s the final paragraph or the penultimate
29 paragraph I think is:
31 I have been asked to advise whether it
32 would be appropriate to restore Father
33 Rubeo’s priestly faculties such that he
34 would be available for supply work.
36 And I go on to recommend —
38 Q. Yes, perhaps if we could keep scrolling?
39 A. Yes.
41 Q. If we can stop there. And you advise that it would
42 not be appropriate to return Father Rubeo even to a limited
44 A. Yes.
46 Q. And you are asked, given that you were advised that he
47 wished to retire, whether such retirement should impinge
1 upon your investigations or findings, and you said it would
3 A. Yes. I said:
5 I consider there is utility in accepting
6 Father Rubeo’s retirement, but subject to
7 his resigning from all other offices (if
8 any) held by him at this time.
10 Q. Thank you. And you understand that subsequently
11 Father Rubeo, as he then was, resigned from any canonical
12 office that he still held?
13 A. Yes, he did.
15 Q. You would have understood during your work as
16 Independent Commissioner that Catholic Church Insurance
17 Limited played a role in making payments of ex gratia
19 A. I became aware. I must say I think it was some time
20 after I was in my role that I became aware of insurance,
21 which was certainly not my considerations.
23 Q. No, and you didn’t have anything to do with the
24 insurers, I take it?
25 A. Nothing at all.
27 Q. Just to be fair to you, Mr O’Callaghan, can I show you
28 tab 258. This is a claim summary in relation to Father
29 Rubeo and Mr Hersbach; do you see that?
30 A. Yes.
32 Q. Dated – it’s undated so far, but no doubt it will
33 become dated if we continue. Dated March 2008. The claim
34 summary refers to the medical report and then refers to
35 your investigation?
36 A. Yes, I’m coming to that, am I? Yes.
38 Q. You see that’s in the middle of the page now?
39 A. Yes.
41 Q. It refers in the final sentence to “the complainant
42 has a very vague memory of all this”, which is consistent
43 with the statement you made in the letter to him?
44 A. Yes.
46 Q. The panel recommendation, with which you were not
1 A. Yes.
3 Q. And then underneath there’s other relevant
4 information, if we can have that whole paragraph on the
5 screen. Then if we could turn to the second page, this is
6 Mr Rolls, who was – and I’m sure I will be corrected if
7 I am wrong – a director of or certainly a senior person
8 within CCI at the time. He refers there to:
10 I believe this matter highlights a
11 difficulty we face with the “Melbourne
12 scheme”. There are very seldom independent
13 medical reports and we rely upon Carelink
14 who appear more than ready to attribute the
15 ailments with which the claimant presents
16 to the alleged abuse.
18 Just stopping there, are you able to make any comment in
19 respect of that opinion?
20 A. No, I understand it. I have nothing to say about it.
21 It seems to be suggesting that reports are a bit generous.
23 Q. Yes. Not a view you share or shared?
24 A. Certainly not. Certainly not. I have seen many
25 reports from Carelink which have been submitted to the
26 Compensation Panel and I have considered them to be very
27 well constructed and certainly laying down the facts in
28 favour of the victim.
30 Q. Thank you. He then refers to your investigation and
31 your interviews?
32 A. Yes.
34 Q. Can you read that paragraph?
37 Further, unless the police have been
38 involved, there is no investigation other
39 than the pitiful interviews conducted by
40 the Independent Commissioner which are
41 seldom more than an account of the events
42 as given by the claimant, accompanied by
43 anecdotal irrelevancies offered by the
44 Commissioner himself that are designed to
45 support the story being told. I would like
46 to find that following these typical
47 interviews the Commissioner engaged in some
1 form of investigative activity but I do not
2 believe this is the case. Certainly there
3 are no reports in the files of Corrs to
4 support that suggestion.
6 Well, I have read that. I think this is the first time
7 I have ever seen it. I reject it.
9 Q. It’s the case, isn’t it, that you kept your own files?
10 A. Yes.
12 Q. So you wouldn’t expect the files of Corrs to contain
13 the results of your investigative work, is that right?
14 A. I would expect Corrs’ files to contain the report – my
15 report to the Compensation Panel, but certainly not steps
16 in the process of the investigation. I might say I have
17 known Mr Rolls and have considerable respect for him, but
18 he didn’t put this to me.
20 Q. Can I turn to [AFA]?
21 A. I’m sorry?
23 Q. [AFA], who was the third person we heard evidence from
24 on Monday. If we look at first of all tab 268. This is
25 the transcript, Mr O’Callaghan, of your interview with
27 A. Yes.
29 Q. There is reference in relation to the police, starting
30 with – if we look at the bottom of the first page, there’s
31 reference to Father Michael Glennon?
32 A. Yes.
34 Q. Father Michael Glennon was someone known to you before
35 you saw [AFA] in February 2011, I take it?
36 A. Perhaps I could say unfortunately yes.
38 Q. You no doubt had seen many complainants?
39 A. Indeed I had. In fact, I think there is some
40 discussion in this transcript about Glennon in – I think
41 [AFA] refers to him as a learned man, et cetera.
43 Q. But you had had cause to investigate his conduct in
44 respect of other complainants, I take it?
45 A. Yes.
47 Q. If we can just turn over. Halfway through the second
1 page there is reference to you saying, “They’ve”, that is
2 complainants, “have a continuing and unfettered right to
3 report that to the police. In Glennon’s case that’s
4 futile.” Then, “Now when I say it’s futile, it’s” and then
5 you were interrupted, and then further on if we continue
6 down the page and perhaps over to the next page you say,
7 “Now do you want to go to the police?” And [AFA] says,
8 “Well, if there’s a chance of putting him back in prison
9 I think I would go to the police because I just know that
10 he’ll reoffend.” Then you say, “If you go to the police
11 I’d immediately do nothing,” because it’s your inflexible
12 practice if the matter goes to the police that you can’t be
13 seen to be a substitute for the police force.
15 Then you say, “So, he’s out in about two years,” and
16 then you ascertain that the matters in respect of [AFA]
17 occurred in 1975 and 1976 at St Gabriel’s Reservoir parish.
18 And continuing down you say there that you encourage people
19 to go to the police, “but let’s just look at this imbalance
20 that if you went to the police and they charged Glennon
21 with what he did to you, that would be I suspect very
22 similar to what a lot of other people had happen to them
23 for which he’s been convicted”?
24 A. Yes.
26 Q. Just stopping there, was that based on your own
27 knowledge in your role as Independent Commissioner with
28 previous complainants?
29 A. I’m simply saying that would be very similar to what a
30 lot of other people have happened to them and for which
31 they have been convicted.
33 Q. But what is your source of information for that is the
34 question, Mr O’Callaghan? Is it your own experience with
35 other complainants?
36 A. Yes. The files that I have in respect of Glennon are
37 very compendious and I have traced Glennon’s history in
38 great detail and I think later on in this interview or in
39 one of the letters I indicate the occasions on which
40 Glennon has been convicted.
42 Q. Now, continuing over the next page you say that,
43 “There’s a real prospect for even such a notorious fellow
44 that the court would say he’s done his time.” Then
45 further, “If you go to the police it would take a year or
46 two years.” Then you confirm what [AFA] said, “There’s no
47 guarantee he’d be convicted.” Then you indicate, “On the
1 other hand, what I’m saying is doing this, if you satisfy
2 me that, and you won’t have much difficulty doing that,
3 then I can refer you to Carelink and the like.” Just
4 stopping there. Can I suggest, Mr O’Callaghan, that in
5 that exchange you don’t provide any reasons to encourage
6 Mr [AFA] to go to the police; do you accept that?
7 A. I was telling him what my opinion was as to what had
8 happened and what is likely to happen.
10 Q. Do you accept that you were not providing him with any
11 reasons to encourage him to go to the police?
12 A. I don’t wish to evade that question, but I was not –
13 I was doing nothing than what I just described I was doing.
15 Q. Your job was to encourage people to go to the police?
16 A. Yes, appropriately.
18 Q. Can I suggest to you that in this case you did not
19 encourage Mr [AFA] to go to the police?
20 A. Well, I don’t accept that and I accept – I would say
21 that if you look at the transaction as a whole, the whole
22 of the transcripts, the letters I wrote to him, that he was
23 given the facts such as would encourage him to go to the
24 police. He knew all of the parameters if he did.
26 Q. Can I also suggest that indeed what you were doing was
27 positively discouraging him from going to the police?
28 A. No, I don’t accept that.
30 Q. Perhaps if we can then turn to your letter to him, tab
32 A. Could I just say, with respect, that the context of
33 that, in which those remarks should be seen, should be seen
34 in the entirety of my interview with him which is recorded
35 in the transcript.
37 Q. My question is to you based on the entirety of that
38 interview, Mr O’Callaghan?
39 A. Yes.
41 Q. Tab 269, this is your letter to him in February 2011,
42 and if we can scroll down to the end of the first page you
43 set out for his consideration matters which he might
44 consider relevant as to whether he should go to the police?
45 A. Yes.
47 Q. Do you see that? You tell him he is under no
1 obligation to and that many complainants don’t?
2 A. Yes.
4 Q. You refer to his concern that on release he may
6 A. Yes.
8 Q. And that that would be removed if he was sentenced to
9 a further term of imprisonment?
10 A. Yes.
12 Q. You then in paragraph 3 say it’s likely that he would
13 be convicted but there’s an issue as to what sentence he
14 might receive, and then you refer to all of the years that
15 he committed offences for which he had been convicted?
16 A. Yes.
18 Q. Did you access that material from your files in
19 relation to other Glennon matters?
20 A. To my files and also to court reports.
22 Q. Public records?
23 A. Public records.
25 Q. And then still in paragraph 3 you say that “the court
26 would perhaps not imprison him or alternatively only for a
27 relatively short period”?
28 A. Yes.
30 Q. That was your professional opinion, I take it?
31 A. Well, it’s difficult to remember precisely, but
32 I think it was a reflection of my having observed in the
33 particular case that the judge suspended the sentence in
34 respect of the notorious Des Gannon, and I have provided
35 the press report of Judge Barnett’s report.
37 Q. But that’s in relation to Gannon, isn’t it, not
39 A. It is, but it is relevant in my mind because they
40 were, I suppose, if you can say it, I think Glennon was
41 worse, but they were both notorious offenders.
43 Q. Glennon was worse, did you say?
44 A. I think so. Yes. It would be a balancing act to
45 differentiate between these evil men.
47 Q. I might tender this, Your Honour. This is an article
1 from – where was it?
2 A. I think it’s an article from The Age of July 2000.
4 Q. I see. So it is an on-line reference to it, I gather?
5 A. I believe so. I had a memory of that because where
6 I got that document was from a file of a victim of
7 Glennon’s which I decided some time ago and I obviously had
8 that placed on the file – on that file when I read it.
10 Q. So you had regard to Mr Gannon’s experience in respect
11 of the advice you gave concerning Mr Glennon?
12 A. Well, I had regard to the judicial response to – as
13 the article says, these were very serious offences.
15 THE CHAIR: We will make the article exhibit 16-6.
17 EXHIBIT #16-6 ARTICLE FROM THE AGE NEWSPAPER
19 MS FURNESS: Thank you, Your Honour. Q. You then refer
20 to the Sex Offenders Registration Act?
21 A. Yes.
23 Q. And you are assuming that he will be a registered sex
24 offender for life?
25 A. Yes. That flowed from questions and answers which
26 appear in the transcript.
28 Q. Yes, it does indeed. Then you express the opinion
29 that there would be a real possibility that the police
30 would decline to charge?
31 A. Yes.
33 Q. And how long it might take if there were to be a
35 A. Yes.
37 Q. And the fact that you wouldn’t take any steps if he
38 did go to the police?
39 A. Yes.
41 Q. Can I again suggest to you in relation to [AFA] that
42 you did not encourage him to go to the police?
43 A. I consider that I placed before [AFA] relevant facts
44 and I clearly recorded that I do encourage people to go to
45 the police, but I stressed to him I think in my letter to
46 him, “It’s your decision”.
1 Q. Yes, you use the words “I encourage the exercise of
2 that right,” but in fact in the individual case of [AFA]
3 the reasons that you set out are largely discouraging
4 rather than encouraging, aren’t they?
5 A. Well, I disagree with that in the sense that
6 I consider that, reasonably construed, I gave satisfactory
7 advice, if you can call it that, to Mr [AFA] so that he
8 could make the decision which was his to make.
10 Q. But you weren’t acting as a barrister, Mr O’Callaghan.
11 Your job wasn’t to advise him. Your job was to encourage
12 him to go to the police; isn’t that right?
13 A. Yes, and I go back to the context which I was talking
14 of in the previous case and in any case, that I look at the
15 whole picture.
17 Q. You have had the opportunity of reading Mr [AFA]’s
18 statement, have you?
19 A. Yes.
21 Q. And you know that he did go to the police after he had
22 received compensation from the Compensation Panel?
23 A. Yes, he did.
25 Q. And he had a very positive experience with the police?
26 A. Yes.
28 Q. And they told him they were very keen to progress the
30 A. Yes.
32 Q. And charges were laid against Father Glennon?
33 A. Yes.
35 Q. Unfortunately he died in prison before those charges
36 were heard?
37 A. Yes.
39 Q. He then says that after he had spoken with the Office
40 of Public Prosecutions he received a phone call from you?
41 A. I don’t think that’s correct. The phone call that –
42 he rang me some time fairly shortly after or around the
43 completion of his application to the Compensation Panel and
44 he said, “I’m going to the police,” and he said would
45 I consent to his taking the transcript of interview with
46 him and I said, to the best of my recollection, “You don’t
47 need my consent, but I will readily give it.” That
1 happened. Then I subsequently rang him to ask what had
2 happened. I did that, as I say, on a number of occasions
3 because I was in the process of preparing submissions to
4 the parliamentary inquiry in which I was dealing with the
5 issue of reportage to the police and I instanced this as
6 one example of where the victim didn’t originally go to the
7 police, but after he was compensated he did, and there’s a
8 passage of that recording that in the parliamentary
9 committee which I set out in my statement.
11 Q. Did he also tell you the outcome of going to the
13 A. He told me – the first thing, the sequence, and
14 I think this does appear in my statement, the sequence is
15 he spoke to me with respect to going to the police and
16 having my consent to take the transcript. I then rang him,
17 as appears from my statement, I then rang him and asked him
18 what had happened. He said, “I have been to the police,
19 made a statement, and I think” – words to the effect, they
20 are in my statement, words to the effect of “I think they
21 are going to charge him.” Then I rang him some time later
22 and he again told me that he had been interviewed, I think.
23 I may have this out of sequence, but if I could just refer
24 to my statement.
26 Q. It’s not in your statement, if I can help you?
27 A. Pardon?
29 Q. It’s not in your statement.
30 A. Not in my statement that I spoke to him and the reason
31 I spoke to him?
33 Q. No, unless I’m reading the wrong page of your
34 statement. I’m sorry, later in your statement, not earlier
35 in your statement. I apologise. I was later in your
36 statement towards the end of it. Perhaps if we can have
37 paragraph 64. Perhaps if we can go earlier, paragraph 59
38 of Mr O’Callaghan’s statement. You refer in your statement
39 to him ringing you before 2 August 2012 telling you that he
40 was going to report to the police and then you rang him on
41 that date asking him what had happened, and then in
42 February 2013 and he told you then that Glennon was
43 probably going to be charged?
44 A. Yes.
46 Q. The fact that the police did ultimately charge Michael
47 Glennon, did that give you pause as to whether or not you
1 should be advising complainants as to your view as to what
2 the police may or may not do?
3 A. I considered that it was appropriate for me to say
4 what in my opinion was likely to occur.
6 Q. So it didn’t give you pause to consider advising
7 complainants as to your view as to what the police might
9 A. This is a fairly rare case, as far as I can recall.
10 But I certainly – there are tonnes of files which will
11 record my encouragement of the police in terms of what you
12 might accept as encouragement. This was in 2011 and I have
13 continued my practice of encouraging people to go to the
16 Q. Do you continue your practice of advising them as to
17 your opinion on their prospects if they go to the police?
18 A. In a very limited number of cases.
20 Q. Why do you only do it in a limited number of cases?
21 A. Because I feel that I have a duty to acquaint them
22 with all the criteria which they can have in deciding
23 whether or not to go to the police.
25 Q. Why does that duty only arise in a limited number of
27 A. Because the reservations I have about what the court
28 might do in this case and in, for instance, another case in
29 which I said to a person without discouraging him from
30 going to the police, “I must say that it may be that the
31 action will be not accepted by the court” or words to that
32 effect, and she did go to the police, there was a committal
33 hearing and then the DPP or OPP withdrew the prosecution.
35 Q. Just coming to paragraph 68 of your statement you say
38 Had I been of the opinion that there were
39 prospects of successfully taking action at
40 common law, I would have recommended he
41 seek independent legal advice.
43 A. Yes.
45 Q. We dealt with that yesterday and you are coming back
46 to us on those other five cases where you did recommend
47 that they seek advice?
1 A. Yes. I think overnight I have ascertained I think
2 it’s probably four. But I also have in the back of my mind
3 that a solicitor rang me in respect of a complaint and
4 indicated who the offender was and I said, “Without taking
5 the matter further I think you should look at such and such
6 a case and take it from there,” and that person never came
7 back, naturally.
9 Q. So in not recommending that he seek independent legal
10 advice, were you relying upon your memory of what you knew
11 about Glennon from the files from the Archdiocese that you
12 had obtained in the course of many investigations?
13 A. Yes. I would have been relying upon the fact that
14 there had been, to my knowledge, no actions brought against
15 Glennon and that the difficulties of bringing that action
16 were to prove knowledge of a vicarious sort and I didn’t
17 think that would occur. If I did think there were some
18 prospects of it occurring, I would do as I have said.
20 Q. I understand that. It’s the source of your
21 information on which you provided your advice that I’m
22 asking you. It was based on the material that you held
23 from your previous investigations in relation to Glennon?
24 A. Yes, and as I say, unfortunately for the reasons of
25 his malevolence I have very extensive extra notes in
26 relation to the activities of Glennon, and the one thing
27 that I was referring or referring to there is that there
28 have not, as far as I’m aware, been any actions brought
29 against Glennon.
31 Q. Would you expect —
32 A. Against the Archdiocese for liability for Glennon.
34 Q. Did you make enquiries of the Archdiocese or their
35 solicitors as to whether there had been any cases brought
36 against Glennon?
37 A. I’m not sure that I made any enquiries, but I would
38 have become aware of it. As I say – and I hasten to say
39 this too often – the Glennon files are very comprehensive.
40 I have read reams of correspondence that he had with
41 Archbishop Little, this is after he had been found to have
42 these propensities, and so I have a long knowledge of
43 Glennon and his matters.
45 Q. But whether there was any civil action taken would be
46 of a more current nature and you wouldn’t necessarily
47 expect that to be on Glennon’s files, would you?
1 A. No, certainly I wouldn’t have. But I would have
2 become – if Glennon had brought action, I’m sure I would
3 have become aware of it in one way or another – if someone
4 had brought action against Glennon and the Archdiocese.
6 Q. So you assumed you would have been told, but you
7 didn’t make any enquiries to satisfy yourself that that was
8 in fact the case?
9 A. I don’t think so.
11 Q. In relation to the complaints that are currently
12 before you as Independent Commissioner, how many do you
13 have that are active?
14 A. At this moment?
16 Q. Yes?
17 A. I think there are about close to 10 outstanding and in
18 one of those cases I’ll be advising of the opportunity, if
19 they wish, to take action elsewhere, but I shouldn’t
20 discuss that here at the moment. But that’s about the
21 order of it. That’s over a couple of months, I think. As
22 I say, as I said to the Commission yesterday, when
23 I retired at the power outage a person rang me up and
24 that’s been passed on to Mr Gleeson.
26 Q. Do you report in some form of way to the Archdiocese
27 on a regular basis as to how many complaints you still have
28 that haven’t been resolved, how many have been resolved?
29 A. No, I don’t. As I say, in the ordinary case where the
30 priest is dead or convicted or not in active practice,
31 I don’t tell the Archdiocese of my dealing with that
32 complaint and the Archdiocese would become aware of it when
33 the report of the Compensation Panel is made.
35 Q. Have you instituted any system whereby people can
36 formally provide you with feedback as to their experience
37 with the Independent Commissioner?
38 A. Would you mind saying that again?
40 Q. Certainly. Have you instituted any system whereby
41 people can provide feedback to you, tell you what they have
42 thought of the experience with the Melbourne Response and
43 in particular your role in it?
44 A. I have taken no formal steps in that regard. In some
45 instances I have had communications from victims who have
46 rung up and are no longer involved in the process, but for
47 some reasons of interest or other they have rung me up to
1 tell me what they were doing and how they were doing. But
2 I have no formal situation of, for instance, polling the
3 victims to ask them of their experiences and I would think
4 it would be highly inadvisable to do so unless I had their
5 specific consent, because to retraumatise people is
6 unfortunately not very hard.
8 Q. You understand, of course, that seeking feedback can
9 be done otherwise by way of polling?
10 A. Of course I do.
12 Q. Is there any review process available to a complainant
13 from your decision?
14 A. There is no review within the Melbourne Response
15 itself. But I have said that if a complainant or a victim
16 had been denied natural justice or the decision that was
17 made was so unreasonable that no decision maker would make
18 it, and like situations, then there would be a remedy at
19 law in Order 56 of the Supreme Court Rules.
21 Q. Has anyone taken that path?
22 A. No, not that I’m aware of, and I would be aware of it
23 if they did.
25 Q. Yes, I accept you would be aware of it,
26 Mr O’Callaghan. Am I correct in understanding that prior
27 to the announcement of the Victorian inquiry you were
28 proposing to either stand down or wind down, with
29 Mr Gleeson intended to take over the bulk of the work; is
30 that correct?
31 A. That’s certainly correct.
33 Q. And because of the Victorian inquiry you thought it
34 appropriate to stay on?
35 A. I did, because I thought it would be inappropriate to
36 leave and perhaps attract the caption that “he’s off the
37 ship” and indeed, if I might say with respect, I have the
38 same attitude in relation to accounting for my stewardship
39 before this Royal Commission rather than doing it from a
40 retired basis.
42 Q. Thank you, Mr O’Callaghan. Nothing further.
44 THE CHAIR: Does anyone else have any questions?
46 MR CASH: Your Honour, I do have a limited amount of
47 questions on behalf of Mr Hersbach. I don’t know whether
1 Your Honour wants to proceed in this order or —
3 THE CHAIR: I’m happy to take you in whatever order is
4 appropriate. Does anyone else wish to ask questions?
6 MR MYERS: I will ask Mr O’Callaghan some questions when
7 all those who have other interests have done so.
9 THE CHAIR: You would like to come at the end. I think
10 that’s fair.
12 MR SECCULL: Yes, I have a brief number of questions also,
13 Your Honour. I act on behalf of the Foster family.
15 THE CHAIR: Anyone else?
17 MR RUSKIN: No, sir
19 MR GRAY: No, Your Honour.
21 THE CHAIR: I think the two of you should go one after the
22 other and then Mr Myers.
24 MR SECCULL: If Your Honour pleases.
26 <EXAMINATION BY MR SECCULL:
28 MR SECCULL: Q. Mr O’Callaghan, Seccull is my name.
29 I appear on behalf of the Foster family.
30 A. That’s information I already know.
32 THE CHAIR: The reason for that, Mr O’Callaghan, for
33 counsel saying that —
34 A. I was being unduly facetious, Your Honour.
36 THE CHAIR: It is important that those who are watching,
37 and there will be thousands watching this on the video
38 through the net, know what’s happening here.
40 MR SECCULL: Q. I’m wondering, Your Honour, if
41 Mr O’Callaghan could be shown tab 105, please.
42 Mr O’Callaghan, you probably recognise this document. It’s
43 described as your file note bearing the date of 30 April
44 1997, is it not?
45 A. Yes. I haven’t looked – I accept what you say as to
46 the date.
1 Q. Obviously as at that date, that is 30 April 1997, you
2 were seized of a complaint having been made by Emma Foster?
3 A. The sequence of events was that I had the discussions
4 with Mr Anthony Foster, wrote to Mr Anthony Foster, then
5 there was an arrangement for me to meet with the Fosters
6 and Emma on 17 March.
8 Q. Yes?
9 A. Clearly that was in pursuit of a complaint of sexual
12 Q. Yes, thank you, Mr O’Callaghan. Obviously this file
13 note that you have dictated occurred at a time subsequent
14 to that meeting?
15 A. Yes.
17 Q. And in the course of your investigating the complaint
18 made by Emma?
19 A. Yes.
21 Q. And in fact at a period of time significantly prior
22 to, firstly, your proposed finding in relation to Emma that
23 occurred on 3 October 1997?
24 A. Yes.
26 Q. And your final finding that occurred on 10 June 1998?
27 A. Yes.
29 Q. If I can just ask you, please, to – or just scroll
30 down that document and if I could be permitted to read:
32 I was rung by Mrs Chris Foster at about
33 5.30 who said she had spoken to Sue Sharkey
34 and Sue Sharkey had made requests about
35 Professor Ball and so on. She then read to
36 me the lengthy letter from the Vicar
37 General, which I must confess I said I had
38 not remembered, but my memory was
39 ultimately refreshed.
41 If I can just stop you there, that letter from the Vicar
42 General in fact you had been provided, had you not, with a
43 draft of that letter?
1 not sure.
3 Q. Thank you. And that was the letter that appears at
4 tab 102. That’s a letter dated 3 April 1997?
5 A. Yes.
7 Q. And as we scroll down you will see there that it is to
8 then Monsignor Hart, you are copied in, as are Carelink?
9 A. Yes.
11 Q. And it is from Mr Richard Leder from Corrs?
12 A. Yes.
14 Q. As we get to page 2 you will see that Mr Leder has
15 provided for the benefit of the then Vicar General
16 Monsignor Hart a suggested draft letter that was to be sent
17 to Mrs Foster?
18 A. Yes.
20 Q. Indeed, if we then turn to tab 103 that’s a letter
21 bearing the date 3 April 1997, the same date as the
22 facsimile to which you were copied in and it represents,
23 does it not, the suggested draft authored by Mr Leder?
24 A. Yes.
26 Q. If I can take you back to tab 105, please. Mrs Foster
27 relays to you, paragraph 2:
29 Suffice to say that I then read to her
30 letters which I had written to Monash
31 Medical Centre, et cetera, about obtaining
32 medical reports and told her that let’s
33 hold our horses until we see the results of
34 these letters. She made it clear (and
35 I stress these are just segments of a
36 lengthy conversation) that they would much
37 more prefer to talk to me than to talk to
38 Professor Ball about Emma’s matters.
40 A. Yes.
42 Q. And then in the next paragraph:
44 She then volunteered that Emma had gone to
45 the Prahran Police Station with Tania
46 Smith, a psychologist. I said, “Well,
47 I wondered about that because the man’s no
1 longer here.”
3 If I can just stop you there. What did you wonder about?
4 A. They were going to the police to complain about a
5 person who’s dead, in the sense that obviously no action
6 could be taken against the deceased.
9 But she then said, well, she thought that
10 might be a way in which Emma could prove
11 her case, or words to that effect.
13 A. Yes, and indeed that proved to be prophetically
17 I said, “Well, that may be a shortcut, but
18 in any event perhaps in due course Emma may
19 speak to me.”
21 A. Yes. I think you would have heard, Mr Seccull, that
22 Emma at the meeting on 17 March said she was going to speak
23 to me, but she then said she didn’t want to do that then.
25 Q. Then in the next paragraph:
27 Superimposed over all this is the real
28 question mark as to whether in fact Emma
29 was abused by O’Donnell.
31 Obviously as matters progressed you made the preliminary
32 and then formal finding that a complaint had been made out
33 in respect of Emma?
34 A. Yes.
37 Palpably, the parents are convinced of it.
38 But there is some elements of “we protest
39 too much.”
41 A. Yes.
43 Q. Could you just explain what you meant by that, “we
44 protest too much”?
45 A. I think that’s a – I was just saying that the emphasis
46 that they were making was an emphasis of – but at the same
47 time they were expressing concerns as to how to establish
1 that she had been abused.
3 Q. “On the other hand, I think the Corrs drafted letter”
4 – and that’s the letter which I referred you to earlier?
5 A. Yes.
7 Q. “… has had the effect of having them appreciate that
8 it may be the tap for moneys for support might be turned
10 A. That was if – if a finding wasn’t made, that would be
11 the result.
13 Q. “As Professor Ball said to me yesterday, there is no
14 provision in the arrangements for turning off the tap”?
15 A. Yes.
17 Q. “He went so far as to say a girl like Emma could cost
19 A. Yes.
21 Q. Now, if I can just ask you to pause there, please,
22 Mr O’Callaghan. Did you not think it appropriate at that
23 time in your investigation in respect of the complaint by
24 Emma that you have communication and discussion with
25 Professor Ball?
26 A. I can’t recall the circumstances of my discussion, but
27 obviously I did speak to him and that was when I recall
28 that he did say that Emma’s grievously conditioned to and
29 would have to receive treatment over a longer period. This
30 is an internal document which simply recorded what was
31 happening. It plays no significance in my later
34 Q. Yes. I note that at the bottom right-hand aspect of
35 that page, and I presume it’s your writing, Mr O’Callaghan,
36 “Working note. Not to be sent”?
37 A. Yes, that emphasises that this was an aide memoire, if
38 you like, for me and me only.
40 MR SECCULL: Thank you, Mr O’Callaghan.
42 <EXAMINATION BY MR CASH:
44 MR CASH: Q. My name, Mr O’Callaghan, is Cash. You
45 would be aware, of course, that I act on behalf of
46 Mr Hersbach?
47 A. I do, Mr Cash.
2 Q. Sir, I might just take you to, if I may, tab 11 and
3 the terms of appointment. If they could be brought up on
4 the screen, please, and in particular page 3 of those
5 terms. We can see on page 3 of those terms how one of the
6 terms, number (v), is that:
8 The Commissioner will not act so as to
9 prevent any police action in respect of
10 allegations of sexual abuse by church
13 You will recall the evidence of Mr Hersbach which was
14 namely, based on that advice, that is how you told him in
15 the letter that you sent him that there was not much point
16 in taking the matter to the police?
17 A. Yes.
19 Q. He said that, “Based on that advice, I did not go to
20 the police”?
21 A. Yes.
23 Q. I suppose it’s fair to say that in retrospect that
24 advice was such as to in effect – the effect of that advice
25 was to prevent him from taking police action; is that fair
26 to say in retrospect?
27 A. Well, I wouldn’t say prevented. It may have been a
28 factor in his not taking that step.
30 Q. To the extent that your job was to appropriately
31 encourage the exercise of the right to take a complaint to
32 the police, this was really inconsistent with that, wasn’t
33 it? It was a discouragement, wasn’t it?
34 A. No, I don’t agree with that, Mr Cash. What I have
35 endeavoured to say is that I thought I should explain to
36 him what I would apprehend would be the likely reaction of
37 a statement which is one of, “I can’t really remember
38 anything,” and I stress again in complete contrast to the
39 much more emphatic and detailed statement he made to me at
40 a later time, in which I would not certainly have said,
41 “There’s no point in going to the police.”
43 Q. Because he gave evidence, didn’t he, about how it is
44 that in retrospect he considers it’s inappropriate that you
45 gave him your opinion about going to the police and what
46 would happen if he went to the police, didn’t he?
47 A. Yes, I heard that.
2 Q. I might take you, if I may, to the interview that was
3 conducted between you and he, and it’s in the materials at
4 tab 236. If tab 236 could be brought up on the screen,
5 please, and in particular page 5 of that transcript. In
6 the middle of the page or thereabouts you ask him, don’t
7 you, “Do you recollect anything he did to you?” And he
8 said, “No, no,” and then goes on, doesn’t he?
9 A. Yes.
11 Q. His allegation was not one of being physically touched
12 by the priest in this instance, was it?
13 A. Yes.
15 Q. You agree with that?
16 A. Well, yes.
18 Q. And so he’s saying there in answer to the question,
19 “Do you recollect anything he did to you,” he says, “No,
20 no,” perhaps conveying that he didn’t do anything of a
21 physical nature, that is touching him, perhaps; you accept
23 A. Yes.
25 Q. And he goes on and he says, “I recollect him at a
26 later stage when we were in the Patch.” Now, just stopping
27 there. He’s going on to describe something that happened
28 at a particular venue, isn’t he?
29 A. Yes.
31 Q. And the Patch, as I understand it, is a region in
32 Melbourne around Mount Dandenong, isn’t it?
33 A. I believe so.
35 Q. So he’s providing you with a timeframe – sorry, he’s
36 providing you with a venue, but we also know, don’t we,
37 that he lived in the Patch at a particular time in his life
38 which can be identified, can’t it?
39 A. Yes.
41 Q. So he provides you with an idea of the venue and an
42 idea of the timeframe, and he goes on to say, “I saw him
43 naked and I recollect him, what I now know he was, can
44 I call it, in the early stages of masturbation”?
45 A. Yes.
47 Q. “I recall seeing him naked, walking out of his room
1 and he would walk around the house, this is when I was in
2 grade 4.” So he was giving you some detail of this gross
3 indecency that was being performed in his presence, wasn’t
5 A. Yes, the events of which he recalled.
7 Q. Pardon, sir?
8 A. He is giving me his recall of the events which he was
9 subject to.
11 Q. And he described those events as being indelibly
12 etched in his memory, didn’t he?
13 A. Yes. Would you take me to that part of the
16 Q. It appears over the page at page 6. If we could
17 scroll down to the following page, page 6 of tab 236, we
18 can see how he says, “Yes, exactly, exactly. It’s burned
19 in my memory. I can remember it. That’s why at the Patch
20 that’s the one that’s a lot more vivid.”?
21 A. Yes. Can you bring me to that passage?
23 Q. If we scroll down a little bit further. You have it
24 on screen now, sir. It reads, “Yes, exactly, exactly,” he
25 says. “It’s burned in my memory. I can remember it.
26 That’s why at the Patch that’s the one that’s a lot more
27 vivid.” Just stopping there. So he’s telling you it is
28 indelibly in his memory in the sense that it is burned
29 therein, isn’t he?
30 A. Yes.
32 Q. And how it is that it’s a lot more vivid, this
33 particular incident. Isn’t he saying that?
34 A. I’m sorry?
36 Q. Isn’t he saying that?
37 A. Would you repeat that?
39 Q. He is saying that, isn’t he?
40 A. Obviously what’s there he is saying.
42 Q. “Because I would have been, well, grade 4.” “How old
43 are you about 9 nearly 10 at that stage. After that,
44 nothing.” The question you ask, “So you’ve got a clear
45 memory of what you describe as the start of him
47 A. Yes.
2 Q. And the answer is, “Yes, I do.” You say, “He was
3 fondling his own penis?” And he agrees with that. And you
4 ask him, “But apart from that, have you got any other
5 memory of a specific act or …?” And he says, “I don’t
6 have any other memories of him of other specific acts.
7 I don’t have any memories of specific acts involving him
8 touching me. I don’t have, you know, the acts that
9 I recall where him being inappropriate with himself around
10 us. I can’t recall any incidents where he either
11 interfered with me personally, no.” So that’s the
12 conversation that was had as between the two of you which
13 was recorded, wasn’t it?
14 A. Yes.
16 Q. He is quite clearly there describing what is quite
17 clearly an act of gross indecency being performed in his
18 presence when he was a child; is that right?
19 A. He was describing that Rubeo was apparently
20 masturbating or endeavouring to masturbate himself.
22 Q. Which on any interpretation amounts to an act of gross
23 indecency being performed in his presence?
24 A. Yes.
26 Q. Into the next tab, namely 237, we have got there notes
27 of what’s described as “Re telephone conversation with
28 Monsignor Tomlinson re Paul Hersbach”?
29 A. Yes.
31 Q. It is unclear to me and you might be able to assist me
32 as to the circumstances of this, but it reads about a third
33 down the page – I will start with the top. “What happened
34 in Laverton involved the father of Paul.” “The father and
35 his brother.” This is a conversation that you are having
36 with Monsignor Tomlinson, is it?
37 A. Yes, it is.
39 Q. Where “M” is referred to, that’s Monsignor Tomlinson,
40 and “P” is yourself; is that right?
41 A. Yes.
43 Q. And it goes on to read, “P: Yes, indeed.” “M: And now
44 this is the son.” “P: Yes, it is.” “M: Was there any, is
45 there any likelihood of charges on this count or was he of
46 age?” I will just stop there. Did this conversation take
47 place some time after the interview that was conducted on
1 9 March with Paul Hersbach and before the letter that you
2 sent to him on 20 April 2006?
3 A. I think the conversation – I have the date of that
4 conversation somewhere, but I thought that was after the
5 process had been almost completed, if not completed.
7 Q. I’m just curious because it is at tab 237. Tab 236 we
8 have the interview dated 9 March. Then at tab 237 we have
9 this conversation. Then at tab 238 the next document is
10 the letter that you sent him saying, “Look, there’s not
11 much point in going to the police.” This is at tab 238. So
12 is it the case that this conversation that’s recorded
13 between yourself and Monsignor Tomlinson occurred after the
14 interview with Mr Hersbach?
15 A. And I would think well after I had sent the letters
16 and indeed – I could have this checked.
18 Q. All right?
19 A. But I would have thought it was – by the way it
20 appears in the file, you are referring to the sequential
21 filing, but I don’t think that’s correct in the sense of it
22 being before that letter or the —
24 Q. Whatever the timing of the conversation which is
25 recorded in tab 237 and which is on screen at the moment,
26 it is evident that Monsignor Tomlinson is expressing
27 interest, if not concern, as to whether there is any
28 prospect of charges being laid, isn’t he?
29 A. That is there. I have difficulty myself in – I got
30 the impression I think it certainly is that Tomlinson who
31 knew Rubeo was concerned if any abuse had occurred when he,
32 Rubeo, was at the presbytery or things of that nature. But
33 I must say, Mr Cash, that I’m not quite clear what the
34 point of this conversation was.
36 Q. The point is this —
37 A. I’m not saying your point, I’m saying the point of my
38 conversation with Mr Tomlinson.
40 Q. I see. Leaving aside the point of your conversation
41 with him, it is evident, isn’t it, from what he says when
42 he says, “Was there, is there any likelihood of charges on
43 this count or was he of age,” he is expressing interest, if
44 not concern, in the prospect of charges being laid in
45 relation to a priest, isn’t he?
46 A. Well, I think more accurately he’s probably expressing
47 concern that if abuse had occurred it may have occurred
1 when he was friendly with Rubeo.
3 Q. Your response to him is, “Well, look, I don’t –
4 I haven’t really thought other than that what it is is
5 would be I don’t think likely to be prosecuted and
6 certainly not likely to be prosecuted because Rubeo was
7 convicted of indecent assault or whatever many, many years
8 ago.” Sir, the fact that he was convicted of indecent
9 assault or whatever many, many years ago, that wouldn’t
10 have any bearing, would it, at all upon – as to whether he
11 was prosecuted in relation to Paul Hersbach?
12 A. Yes, I agree.
14 Q. And so that thinking can’t really be a plausible
15 explanation as to why the priest in this instance wouldn’t
16 be prosecuted in relation to Paul Hersbach; that’s fair to
17 say, isn’t it?
18 A. Well, as I say, Mr Cash, I don’t recall the detail of
19 this conversation other than what appears in the
20 transcript. But I can only say that whatever you can
21 interpret from what’s recorded, that’s the position,
22 because I can’t recall the detail of it.
24 Q. All right. Just going on the transcript that we do
25 have, just say it was the case that Paul Hersbach was to
26 have gone off to the police complaining of an act of gross
27 indecency in his presence conducted when he was a child.
28 If the police were aware that this particular priest had
29 done similar sorts of things years before in relation to
30 Paul Hersbach’s father, that would make them, you might
31 think from a lay perspective if not anything else, even
32 more interested to hear what Paul Hersbach had to say about
33 Father Rubeo?
34 A. I would agree that if they were aware of that,
37 Q. And they would be even more likely to pursue a
38 complaint given those circumstances perhaps; is that fair
39 to say?
40 A. Well, I think they would evaluate the evidence in
41 respect of what the statement that Paul Hersbach at that
42 point would have made to them and which I have said, with
43 all respect to Mr Hersbach, was, if I can simply state,
44 somewhat hazy.
46 Q. What’s hazy about a suggestion made by Mr Hersbach of
47 something which is indelibly impressed in his memory in the
1 sense that “it’s burned in my memory, a lot more vivid,”
2 namely that he was fondling his penis in his presence?
3 What’s hazy about that suggestion, sir?
4 A. Well, I think if you look at the whole of the
5 transcript, that’s why I use the description of “hazy
6 memory”, because if you go down further I think you will
7 find that he said, “I haven’t got a memory” or things of
8 that nature.
10 Q. I don’t want to unnecessarily go back to that
11 transcript, but if we could look at it again, please, tab
12 236, page 6 thereof?
13 A. Yes.
15 Q. He’s quite clearly saying, and I don’t want to be
16 repetitive, what he is saying there, I have taken you
17 through it at the bottom about how it’s burned in his
18 memory, that this is a lot more vivid. You confirmed with
19 him how he has got a clear memory of what he describes as
20 the commencement of masturbating of a Catholic priest in
21 his presence and that he is fondling his own penis. If we
22 go over the page: “Yes, I do. He was fondling his own
23 penis, mmm.” “But apart from that have you got any other
24 memory of a specific act or” and he goes on, “I don’t have
25 any other memories of him of other specific acts.” So he is
26 talking there about how it is his memory in relation to
27 other things, he doesn’t have other memories of other
28 specific acts?
29 A. Yes.
31 Q. But in relation to this particular act of gross
32 indecency performed in his presence when he was a child,
33 he’s quite specific about how he certainly does have a
34 memory of that etched in his memory. “This is what
35 happened.” He told you that, didn’t he?
36 A. Yes, he did. I think if you could go on with the
39 Q. In fairness to you, of course, we can go through
40 it —
41 A. You needn’t.
43 Q. What I invite you to accept is the rest of the
44 transcript of that conversation may or may not be in
45 relation to other events, but in relation to this specific
46 episode he is quite clear, isn’t he, how there was this
47 event, it’s indelibly etched in his memory?
1 A. Yes.
3 Q. There is no haziness about that, is there?
4 A. There doesn’t appear to be.
And that was quite clearly an offence committed by
7 Father Rubeo, wasn’t it?
8 A. I didn’t make that conclusion.
10 Q. Well, it would have been an act of gross indecency
11 performed in the presence of a child and prosecutable,
12 wouldn’t it have been?
13 A. Well, that is probably the case. But what I think
14 I had at the back of my mind is that here is a bloke in a
15 house in which his memory is he sees him tampering with his
16 penis. Anyway, I can’t help you any more, Mr Cash.
18 Q. So it is that on the strength of that interview you
19 write to him on 20 April, and it’s at tab 238, if that
20 could be placed on screen, please. Can we scroll down a
21 bit. You in the second last paragraph on that page say:
23 In your case, however, with respect to the
24 unsurprising haziness of your memory there
25 would not appear to be much point in your
26 taking the matter to the police. However,
27 that is a matter for you.
29 Quite clearly it’s not accurate to describe his
30 articulation in the conversation that was recorded with you
31 about this particular event as “hazy”, is it?
32 A. The particular event you refer to, that appears to be
35 Q. And to the extent that you have offered him this
36 advice that “There would not appear to be much point in
37 your taking the matter to the police,” you accept now,
38 don’t you, that if he did take it to the police in
39 circumstances where the police were – it was made known to
40 the police that this particular priest had been gaoled in
41 the past, there would be a greater interest, one might
42 think, in the police in listening to Paul Hersbach’s
43 complaint, wouldn’t there?
44 A. Yes, I can see that.
46 Q. Can you tell us this, please, sir. Did you ask Father
47 Rubeo what he would say about this allegation?
1 A. Did I ask Father Rubeo?
3 Q. Yes?
4 A. No, I don’t believe I did.
6 Q. You see —
7 A. I accepted that he had engaged in conduct which came
8 within my definition, as I think I said before, and if
9 there’s not – I certainly would have kept in mind what
10 I had previously known of Rubeo and I accepted what Mr Paul
11 Hersbach said in relation to his contact with him.
13 Q. Father Rubeo had actually, in relation to the
14 allegations by Paul Hersbach’s father, Tony, he had
15 actually gone to court and admitted those allegations?
16 A. Yes, he did.
18 Q. He pleaded guilty?
19 A. Yes, he did.
21 Q. So it might have been the case that, had you discussed
22 this with or asked Father Rubeo about what his attitude to
23 this allegation was, that Father Rubeo might have had the
24 same inclination to confess all?
25 A. Well, I would have been unsurprised if Rubeo had
26 admitted it. But the reason I didn’t pursue it was that he
27 had been placed on retirement and I couldn’t make any
28 further recommendations to the Archdiocese in relation to
29 that being the case. So he was at that time functus
30 officio as a priest.
32 Q. He may have been functus officio as a priest, but he
33 was nevertheless capable of being prosecuted as a human
34 being, wasn’t he?
35 A. Certainly.
37 Q. And if your state of mind was, “Well, look” – correct
38 me if I’m wrong – “the likelihood is that if he has done
39 anything wrong he would admit to it,” then wouldn’t that
40 mean that if the police investigated it there would be an
41 even greater likelihood of a prosecution being successful?
42 A. That’s a matter I couldn’t really disagree with.
44 MR CASH: Thank you.
46 THE CHAIR: I think we might take the morning adjournment,
47 and then Mr Myers.
2 SHORT ADJOURNMENT
4 THE CHAIR: What is the position in relation to Cardinal
7 MS FURNESS: Your Honour, the position as I understand it
8 is that, based on what I have been told, it should be able
9 to be dealt with inside of three hours. I qualify that as
10 to based on what I was told.
12 THE CHAIR: We will plan on that basis. Yes, Mr Myers.
14 MR MYERS: I understand that one of my learned friends has
15 a few questions.
17 MR GRAY: Your Honour, may I ask just a couple of
20 THE CHAIR: You will need to find a microphone, I think
22 MR GRAY: May I ask a couple of questions arising out of
23 some questions Mr Cash asked?
25 THE CHAIR: Yes, Mr Gray.
27 <EXAMINATION BY MR GRAY:
29 MR GRAY: Q. Mr O’Callaghan, if we could have tab 237
30 back up, please.
32 MS FURNESS: If my friend might indicate who he is
33 appearing for.
35 MR GRAY: I’m sorry. May it please the Commission, my
36 name is Gray and I appear for the Truth, Justice and
37 Healing Council and for the Archdiocese of Melbourne. Only
38 a couple of questions, Mr O’Callaghan. You remember this
39 is a note you were taken to by Mr Cash?
40 A. Yes.
42 Q. Of a conversation or a transcript of a conversation
43 with Monsignor Tomlinson?
44 A. Yes.
46 Q. And it comes in the tender bundle just after a
47 document concerning Mr Hersbach dated March 2006?
1 A. Yes.
3 Q. But you mentioned this morning that you thought that
4 in fact this conversation with Monsignor Tomlinson actually
5 came some time later?
6 A. Yes.
8 Q. Could I just ask you to have a look at page 5 of this
9 transcript, if we could scroll down in tab 237. Do you see
10 there’s a passage attributed to you, that is P, where you
11 say, “I think there is undoubtedly the case that what the
12 visit to the presbytery is for”, et cetera. Do you see
13 there’s a reference to a visit to a presbytery?
14 A. Yes, I see. Yes.
16 Q. Do you have a recollection that at the time of this
17 conversation with Monsignor Tomlinson one of the things
18 under discussion was the possibility of Mr Hersbach going
19 to visit the presbytery where some of the relevant events
20 had happened, a request from him to do that?
21 A. Yes.
23 Q. And if we could turn, please, to tab 259, do you see
24 that’s an email from – I think it’s your secretary; is that
26 A. It is.
28 Q. To Monsignor Tomlinson dated 11 April 2008, about two
29 years later?
30 A. Yes.
32 Q. And do you see in the first and second paragraphs
33 there’s reference to Mr Hersbach asking if he could visit
34 the relevant presbytery?
35 A. Yes.
37 Q. Does that assist you to recall that the conversation
38 with Monsignor Tomlinson probably took place in about April
39 2008 or a little thereafter?
40 A. Yes, it does, and that’s my belief.
42 MR CASH: I have nothing further, Your Honour.
44 THE CHAIR: Yes, Mr Myers.
46 <EXAMINATION BY MR MYERS:
1 MR MYERS: Thank you, Your Honour. My name is Myers and
2 I appear for Mr O’Callaghan. Would it be possible to put
3 on the screen Mrs Foster’s statement. I’m going to go to
4 paragraph 46 at page 10, first of all. At the end of that
5 paragraph, if you could scroll down to page 10, it’s the
6 words there, “Our solicitors informed us” and then over the
7 page, “that it would be very difficult to sue the Catholic
8 Church and suggested that we initially seek assistance
9 through the Victims of Crime Assistance Tribunal as an
10 alternative to the Melbourne Response.” Mr O’Callaghan, is
11 the Melbourne Response or the Victims of Crime Assistance
12 Tribunal an alternative to the Melbourne Response or can
13 one pursue both?
14 A. No, in my experience there have been several instances
15 where compensation has been obtained via the Melbourne
16 Response and also via the Victims of Crime Assistance
19 Q. Could you look now at paragraph 47, if we can scroll
20 through to that, and the words that I want to direct your
21 attention to in particular are the first sentence:
23 In May 1997 applications for assistance
24 were lodged with the Victims of Crime
25 Assistance Tribunal on behalf of each of
26 us. We then put those applications on
29 Again, to your knowledge does a compensation payment from
30 the Victims of Crime Assistance Tribunal affect any
31 assessment of compensation to be made by the Compensation
33 A. No.
35 Q. I want to remind you now of two further paragraphs of
36 Mrs Foster’s statement. Paragraph 76, first of all,
37 beginning with the last word on page 14:
39 Mr O’Callaghan also wanted to talk
40 privately to Emma, I assumed about
41 accepting the offer of $50,000.
43 Don’t comment on it for the moment. Could we go to
44 paragraph 110:
46 Our understanding is that the three stages
47 of the Melbourne Response are intended to
1 be independent from one another. This is
2 not reflective of our experience with the
3 Melbourne Response. The Independent
4 Commissioner’s role is to determine whether
5 an assault has occurred, yet we were faced
6 with a situation where the Independent
7 Commissioner requested to speak with Emma,
8 we assumed in relation to accepting the
9 offer of $50,000. We found this to
10 demonstrate a lack of independence.
12 When you visited the Fosters in their home you made a file
13 note; is that correct?
14 A. I did.
16 Q. And that’s the file note of 6 May 1999 which is set
17 out I think in full or pretty much in full at page 86 of
18 your statement. Would you like to refresh your memory of
19 page 86. That perhaps can be put on the screen.
20 A. Yes.
22 Q. There are some redactions. If you just glance at it.
23 Is that the file note that you prepared?
24 A. It is.
26 Q. Did you prepare the file note shortly after you went
27 to the Fosters’ home?
28 A. Yes.
30 Q. Is it a true and correct record of the events of 6 May
32 A. Yes, it is.
34 Q. Let me ask you directly: did you seek to talk
35 privately with Emma Foster relating to her acceptance of
36 the $50,000 offer of compensation?
37 A. No, I did not.
39 Q. Could you now look —
40 A. Can I add that Emma had herself or had signed I think
41 a written acceptance of the compensation offer and some
42 time much earlier than that. I certainly said nothing to
43 her about the compensation offer.
45 Q. Could paragraph 96 of Mrs Foster’s statement be put
46 up, please. Mrs Foster says:
1 Mrs Maheras advised me that she had
2 received two telephone calls in November
3 2004 from Ms Harding stating that
4 Mr O’Callaghan had not approved the payment
5 of our counselling expenses and that he had
6 “hit the roof” about it.
8 If I could ask you now to look at paragraph 54 of your
9 statement. I’m sorry, paragraph 54, I beg your pardon. It
10 is page 94. I’m sorry, it’s page 54. I will get it right.
11 Paragraph 31. I’m wanting you to identify the letter to
12 Ms Harding of 15 November, if that be it?
13 A. Yes. That was a letter I sent to her for discussion
14 and later, shortly after that, I wrote I believe formally
15 repeating that letter.
17 Q. Are the contents of the letter accurate?
18 A. Yes, they are.
20 Q. Do you have any recollection of hitting the roof?
21 A. None at all.
23 Q. And did you have any view, or do you have any view
24 today, as to who should have paid the costs of the
26 A. My attitude was expressed in that letter, which was a
27 letter of advice, if you like, or response to a request
28 from Elizabeth Harding, and I had also written a letter of
29 7 April, I think.
31 Q. I would like to ask you about a couple of matters from
32 yesterday’s transcript. Would it be possible to put up
33 page 4269. To refresh your memory, would you look at about
34 line 30. There’s a question asked of you by counsel
35 assisting, “But at this stage” – I won’t read it all and
36 your answer was by way of question, “Before this letter?”
37 Question, “Yes?”. “No, I don’t. I think it’s contrary to
38 what Mrs Foster says in her statement.” Then counsel
39 assisting says:
41 According to paragraph 77 of Mrs Foster’s
42 statement, she says, “In 2002 we instructed
43 our solicitors to commence legal
46 I invite you to look at paragraph 73 of Mrs Foster’s
47 statement, if that could be put up.
1 A. Yes.
3 Q. That says:
5 On 26 February 1999 we met with Mr Seccull
6 and our solicitors to discuss possible
7 common law actions we could take against
8 the Catholic Church. At that meeting we
9 confirmed with our solicitors that we
10 wanted to pursue civil legal action against
11 the Catholic Church rather than continuing
12 with the Melbourne Response or the Victims
13 of Crime Assistance Tribunal.
15 Is that the paragraph you had in mind?
16 A. Yes, it was.
18 Q. Could there be put up on the screen page 4278 of
19 the transcript. I will ask you to look at your first
20 answer on the page, and then there’s a question. My
21 recollection, sir, is that it was you, the chairman of the
22 tribunal, who asked this question. I’m going to read it:
24 Yes, I’m just not sure how your findings
25 could have affected in any way the civil
26 action either contemplated or in train?
28 Mr O’Callaghan, you said:
30 Well, in looking at the matter in
31 retrospect, and you have cited a passage of
32 Watts v Hawke, I would commend you to look
33 at the authorities referred to and in
34 particular the statement by Lord Diplock.
36 If I may say so, Mr O’Callaghan, that wasn’t quite an
37 answer to the question that was asked. I would like you to
38 answer the question, if you would?
39 A. Well, one aspect certainly in which my findings, if
40 they became published, could be in the process of discovery
41 in the civil law proceedings. They could be relevant in
42 that regard – when I say “relevant”, it would reflect the
43 fact that the impermissibility of having a hearing which is
44 a domestic hearing in which matters to be before the
45 Supreme Court in a civil action have also been or are also
46 to be canvassed.
1 Q. Thank you. I think it’s fair to say —
2 A. Would you excuse me, Mr Myers. Your Honour, in
3 relation to Watts v Hawke, I saw your remarks yesterday and
4 having looked through it, I have looked through a few
5 cases, and with your permission I would provide that in a
8 THE CHAIR: Q. I would welcome that, Mr O’Callaghan.
9 Mr Myers, I’m sure you would appreciate the discussion
10 that’s taken place in recent years about this issue, to
11 which I have contributed, Mr O’Callaghan, in New South
13 A. We don’t regard New South Wales as foreign,
14 Your Honour.
16 THE CHAIR: I’m pleased to hear that
18 MR MYERS: We do regard it as authoritative, too.
20 THE CHAIR: Q. What I think you will find is that the
21 critical questions are more refined than perhaps you might
22 have assumed after the earlier decision. But I would
23 welcome anything you can give me about it.
24 A. Thank you, sir.
26 MR MYERS: Thank you, Your Honour. Q. Mr O’Callaghan,
27 I think it’s fair to say that the suggestion was put to you
28 in various ways today and also yesterday that you, far from
29 encouraging victims to go to the police, may have in fact
30 discouraged some of them from going to the police. What do
31 you say about that?
32 A. Well, I want to reject any perception that I have at
33 any stage sought to discourage people from going to the
34 police, save in particular circumstances described. But
35 I would like to make it clear that I have a complete
36 anathema for clerical child sexual abuses and I’m sure this
37 is shared by Mr Gleeson also. We would welcome people
38 taking those miscreants to the court. I have endeavoured
39 to ensure that being done and I advert to it in some
40 passages in my statement. But I certainly have a desire
41 that child abusers are brought to justice.
43 Q. Mr O’Callaghan, you have prepared two documents, both
44 dated 11 August 2014, entitled respectively, “Betrayal of
45 trust volume 1, comments on report of the parliamentary
46 committee into the handling of child sexual abuse”?
47 A. Yes.
2 Q. And ditto volume 2. Why did you do that?
3 A. I did it because I understood that the Royal
4 Commission had seen the reports of the parliamentary
5 committee, my submissions and my evidence and on that basis
6 I was concerned to make sure that there was a correction of
7 many erroneous and damaging statements made in those
8 reports in respect of me.
10 Q. And thus you want to put before this Royal Commission
11 those two documents?
12 A. Yes.
14 MR MYERS: I ask that the Royal Commission accept the
15 tender of those documents.
17 MS FURNESS: I don’t propose to tender the documents,
18 Your Honour.
20 THE CHAIR: I haven’t seen them, Mr Myers. I have some
21 brief understanding. I’m not sure it’s the role of this
22 Commission to comment, second-guess or otherwise pass any
23 judgment in relation to matters that a parliamentary
24 committee has done.
26 MR MYERS: If it be the case, and I accept of course what
27 you say, Mr Chairman, that this Commission won’t have
28 regard to anything that that parliamentary committee has
29 said, then obviously there is no occasion to press for the
30 Commission to receive these documents.
32 THE CHAIR: No. We are required by our terms of reference
33 to be conscious of work that others have done, and we are.
34 In our planning in the work that we do we are endeavouring
35 not to cover the same ground as any other body may have
36 covered. We certainly have no intention of examining with
37 a view to reaching any conclusions or being influenced in
38 our own conclusions by the work that the parliamentary
39 committee has done. So with that assurance, Mr O’Callaghan
40 and Mr Myers, I don’t think we should receive the
43 MR MYERS: Thank you, sir. I have no further questions.
45 MS FURNESS: I have nothing further, Your Honour. But
46 perhaps the witness not be excused until he has provided
47 the various pieces of information discussed yesterday —
2 THE CHAIR: I’m sure he will provide them and we know
3 where he is if he doesn’t.
5 MS FURNESS: Not in terms of providing them, Your Honour,
6 but in terms of coming back to give evidence if necessary
7 about them.
9 MR MYERS: There is no doubt Mr O’Callaghan won’t leave
10 the jurisdiction and he will come back if requested to do
13 THE CHAIR: Yes. Thank you, and thank you Mr O’Callaghan.
15 <THE WITNESS WITHDREW
17 MS FURNESS: Your Honour, Mr Stewart will take the next
20 MR STEWART: Thank you, Your Honour. For the benefit of
21 others, my name is Stewart. I’m counsel assisting the
22 Royal Commission and I call Richard Leder.
24 <RICHARD ALEXANDER LEDER, sworn: [12.16am]
26 <EXAMINATION BY MR STEWART:
28 MR STEWART: Q. Mr Leder, will you state your full name
29 and occupation?
30 A. Richard Alexander Leder and I’m a partner at Corrs
31 Chambers Westgarth, solicitors.
33 Q. And that’s based in Melbourne?
34 A. Yes, sir.
36 Q. Mr Leder, I understand there are some amendments that
37 you wish to make to your statement. If I can go to those
38 firstly at page 25, paragraph 99?
39 A. Yes. It’s simply that the Ringtail document reference
40 at that paragraph of my statement is incorrect. The
41 correct reference has been provided to your solicitors.
42 I’m happy to give it to you again if that’s of assistance.
44 Q. It may be easiest if I just deal with it and you can
45 correct me if I get it wrong.
46 A. Thank you.
1 Q. So four lines from the bottom, adjacent to where it
2 says tab 140, the reference should be CAR.0001.0005.00083?
3 A. Yes.
5 Q. And at page 28, paragraph 115, in the fifth line
6 there’s a sentence which begins “Initially I did not know
7 details of the history or the relationship”, and so on.
8 That should read, as I understand it, “Initially I did not
9 recall the details of”, and so on; is that right?
10 A. That’s correct.
12 Q. And at page 41, paragraph 170, in the last line there
13 is a correction to the Ringtail reference. The third field
14 should be 0003 and the fourth field 0180; is that right?
15 A. I have 0176 rather than 0180. I can’t assist you
16 without looking at the documents, but that is what I have
19 Q. In any event, in respect of that tab 203 do you know
20 whether that’s the right document that’s actually in the
22 A. I would need to be shown. I don’t have it with me.
24 Q. We can come back to that. Then finally at page 43,
25 paragraph 181, in the last line the Ringtail reference
26 should commence with CAR and not COM; is that correct?
27 A. That’s correct, yes.
29 Q. Are there any other amendments you wish to make to the
31 A. No, there are not.
33 Q. You otherwise confirm it is true and correct?
34 A. I do.
36 MR STEWART: I tender the statement, Your Honour.
38 EXHIBIT #16-7 STATEMENT OF MR RICHARD ALEXANDER LEDER,
39 DATED 8/8/2014
41 MR STEWART: Q. Mr Leder, you served articles at Corrs
42 in 1988; is that right?
43 A. Yes.
45 Q. And you were admitted to practice as a solicitor in
46 March of 1989?
47 A. Yes.
2 Q. And you have worked in the litigation and dispute
3 resolution practice at Corrs since your admission to
5 A. Yes.
7 Q. And you were made a partner of Corrs in 1997; is that
9 A. That’s correct.
11 Q. And Corrs have been the solicitors for the Archdiocese
12 of Melbourne for more than 50 years; is that right?
13 A. I believe so.
15 Q. And you started acting on behalf of the Archdiocese in
16 about 1992?
17 A. Yes.
19 Q. At that time you were not yet a partner and the work
20 that you did was typically done under the supervision of
21 partners Tony Darvall or Barry O’Callaghan; is that right?
22 A. Barry O’Callaghan, yes.
24 Q. And Mr Barry O’Callaghan is no relative, as I
25 understand it, to Mr Peter O’Callaghan, who we had before
26 us over the last two days?
27 A. That’s my understanding also.
29 Q. And with increasing seniority in your time at Corrs
30 you worked with an increasing degree of autonomy, is that
32 A. Yes.
34 Q. And the type of work you did for the Archdiocese
35 varied but included dealing with allegations of sexual
36 abuse by clergy; is that right?
37 A. That’s correct.
39 Q. Could we go to page 2 of your statement, which should
40 be on the screen in front of you. Would you read paragraph
41 4 out aloud?
44 In the early 1990s an increasing number of
45 plaintiffs issued civil proceedings in
46 which they alleged that they were the
47 victims of sexual abuse by priests and
1 other religious. Some of these proceedings
2 were issued by victims of priests who were
3 not from the Archdiocese of Melbourne
4 (particularly Ridsdale from Ballarat) while
5 others were victims of members of various
6 orders (particularly the Christian
7 Brothers). These proceedings sought to
8 hold the Archbishop of Melbourne and other
9 entities associated with the Archdiocese of
10 Melbourne (or non-entities, such as “the
11 Catholic Church in Victoria”) responsible.
12 Corrs defended a number of these
13 proceedings on various bases including that
14 the relevant offender was not under the
15 jurisdiction or subject to the supervision
16 of the Archbishop or Archdiocese. From
17 about 1992 I acted in a number of these
20 Q. Would you read paragraph 5 as well and that will be
21 the last one I ask you to read?
24 Other proceedings were issued by plaintiffs
25 who alleged that they had been abused by
26 priests of the Archdiocese. The named
27 defendants were similar to those listed in
28 the previous paragraph. The view was taken
29 that the defendants did not have legal
30 responsibility for the illegal acts of
31 priests. Nonetheless, I recall that from
32 around 1992 or 1993, support and
33 particularly funding for counselling was
34 provided to victims through the Pastoral
35 Response Office which operated under the
36 auspices of the then Vicar General,
37 Monsignor Cudmore. At the time, even this
38 involved controversy as there was concern
39 that providing counselling services may be
40 taken to be some form of tacit admission of
43 Q. That concern referred to in the last line, do you
44 recall now where did that concern come from, whose concern
45 was that?
46 A. I believe that it was a concern expressed to Corrs by
47 the Archdiocese.
2 Q. And that was in the time of Archbishop Little, was it?
3 A. Yes.
5 Q. In the next paragraph, paragraph 6, you say:
7 None of these proceedings against the
8 Archdiocese [in which you acted] proceeded
9 to trial or to settlement prior to the
10 establishment of the Melbourne Response in
13 Are you aware of – and approximate numbers will suffice –
14 how many civil actions Corrs in Melbourne, in other words
15 not just yourself, was handling at that time for the
17 A. I think in the order of 30.
19 Q. And were most of those handled by yourself or —
20 A. I don’t know whether it was most, but certainly a
21 significant number.
23 Q. And you say here that, of those handled by you, none
24 had reached settlement or trial. Are you aware whether any
25 of the others, in other words handled by your colleagues,
26 had reached trial or settlement?
27 A. I believe none did.
29 Q. If we can go to paragraph 10 on page 3 of your
30 statement. You identify there that on 16 July 1996 it was
31 announced that then Bishop Pell would be the new Archbishop
32 of Melbourne and thereafter you became involved in a series
33 of meetings and consultations in developing what was called
34 the four point plan; is that correct?
35 A. The Four Part Plan, yes.
37 Q. Sorry, Four Part Plan?
38 A. Yes.
40 Q. And that was the Church’s response to child sexual
42 A. The Four Part Plan became the Melbourne Response, yes.
44 Q. And as I understand it, Mr Leder, you have been the
45 Archdiocese’s principal solicitor since – I withdraw that.
46 You have been the Archdiocese’s solicitor since the time of
47 Archbishop Little and right through to the present; is that
2 A. Yes.
4 Q. And in more recent times with your increasing
5 seniority you have become, as I understand it, the
6 Archdiocese’s principal solicitor?
7 A. In relation to sex abuse matters, yes, and various
8 other matters.
10 Q. And you were involved right from the outset in putting
11 the Melbourne Response together in concept and subsequently
12 in the running of it; would that be right?
13 A. Yes.
15 Q. And over the years you then have also been involved in
16 handling the civil litigation in relation to child sexual
17 abuse on behalf of the Archdiocese?
18 A. Yes.
20 Q. Would you accept then that you are in a sense uniquely
21 placed to give the Royal Commission insight into the
22 Melbourne Response?
23 A. I’m very happy to give whatever insight I’m able to.
25 Q. Thank you. Can we look at paragraph 19 of your
26 statement. That’s at page 6. In particular, towards the
27 end you say that “various comments were received over the
28 following weeks from a variety of people, including
29 bishops, counsel, insurers and their lawyers, psychiatrists
30 and counsellors”. To your knowledge, were any victims
31 groups or victims’ representatives consulted in the process
32 of putting the Four Part Plan together?
33 A. I don’t believe that I was involved in any such
34 consultations directly, save for discussions with Helen
35 Last and with an international expert from the UK,
36 I believe, who was visiting Melbourne at around that time
37 and whom Ms Last arranged for me and others to meet.
39 Q. Perhaps you can explain what role Helen Last was in at
40 that time and why you regard that to be within the category
41 of victims’ groups or representatives?
42 A. Helen Last’s role, as I recollect it, was as a
43 victims’ advocate within the Vicar General’s office.
45 Q. Was she not the coordinator of the Pastoral Response
47 A. Yes.
2 Q. And that in time gave way after the Melbourne Response
3 was introduced?
4 A. I’m not sure whether it gave way, but it certainly
5 changed in its function and in its responsibilities.
7 Q. Much of its work was taken over by Carelink?
8 A. In relation to the coordination and provision of
9 funding for counselling and treatment, its work was taken
10 over by Carelink.
12 Q. And so the work that Ms Last did prior to the
13 introduction of the Melbourne Response at the end of
14 October 1996 was work for the Archdiocese to assist victims
15 of child sexual abuse; is that correct?
16 A. Yes, but my recollection is that Ms Last and the
17 Pastoral Response Office were involved in the provision of
18 funding for counselling and treatment for victims who came
19 forward. They were involved in coordinating the various
20 pastoral type activities such as meetings in parishes and
21 in particular in the Oakleigh parish, but also elsewhere,
22 as I recall. Ms Last also had other – carried out other
23 roles. Whether they were precisely under the auspices of
24 the Pastoral Response Office or not, I would have to
25 question, but she undertook other roles such as supporting
26 victims in court when there were prosecutions of offenders.
27 I believe that on a number of occasions Ms Last also
28 supported victims at mediations, without prejudice meetings
29 held between a victim and parts of the Church other than
30 the Melbourne Archdiocese and that Ms Last attended those
31 meetings as a support person for the victim.
33 Q. She was employed by the Archdiocese?
34 A. She was, or retained in some way, contracted.
36 Q. And the Pastoral Response Office wasn’t an independent
37 victims’ support group or representative group?
38 A. No, it was not.
40 Q. And this international expert you mentioned, can you
41 enlighten us with more detail in relation to that, perhaps
42 a name?
43 A. I believe that his name was Dr Ray Wyre.
45 Q. Other than those two possibilities that you mention,
46 you are not aware, as I understand it, of other efforts to
47 consult with victims’ groups or representatives?
1 A. No. At that time I don’t recall there being
2 particular victims’ advocates or victims’ support groups
3 being identifiable in the way that they are now, with the
4 possible exception of Broken Rites, I think, was in
5 operation from the early 1990s. But when you speak of
6 consulting with other victims’ groups, my recollection is
7 that there weren’t any.
9 Q. Are you aware whether it was a deliberate choice or
10 merely an oversight not to engage further with victims and
12 A. No.
14 Q. You are not aware; is that what you are saying?
15 A. No, I think that the people that we were consulting
16 with, and particularly people such as Mr Joseph Santamaria,
17 Mr Peter O’Callaghan and Mr Alex Chernov were all
18 independent Queen’s Counsel who I would have seen and I did
19 see as providing independent perspectives.
21 Q. Independent of the Church, but you would accept not
22 with the perspective of those who had suffered child sexual
23 abuse at the hands of the Church?
24 A. I would have expected from their experience,
25 particularly Mr O’Callaghan’s experience and Mr Chernov’s
26 experience and Mr Santamaria’s experience as well, that
27 they had all acted both for plaintiff and defendant in a
28 range of matters.
30 Q. I understand from the announcements that were made at
31 the time that, amongst other things, the system was
32 intended to assist and support victims?
33 A. Yes.
35 Q. Would it not then have been logical and appropriate to
36 consult victims on what they needed or expected?
37 A. I understand your question and, with hindsight, I can
38 see that some wider consultation could have been
39 beneficial. But certainly at the time my feeling was,
40 personally at least, that from the discussions with Ms Last
41 and from the discussions with Monsignor Cudmore and from
42 discussions with other welfare organisations such as the
43 Catholic Family Welfare Bureau that we were hearing at
44 least second-hand the perspective of victims and of what
45 was then seen as best practice for providing assistance to
1 Q. Can we look at paragraph 22 of your statement on
2 page 7. You will see in the fourth line there’s a sentence
3 as follows, “I was informed that other people were urging
4 the Archbishop and Mr Exell” – that’s the then business
5 manager; is that correct?
6 A. That’s correct.
8 Q. Of the Archdiocese, “that parishioners did not ‘put
9 money in the plate’ each Sunday in order to pay for the
10 criminal acts of priests.” Was that a widespread view, are
11 you aware?
12 A. I don’t know whether it was a widespread view. I have
13 a clear recollection that it was a view with which
14 Archbishop Pell strongly disagreed and, to the extent that
15 it was a widespread view, it was a widespread view that did
16 not receive a lot of oxygen in the meetings with him.
18 Q. So am I to understand you to be saying that it’s not a
19 view that had influence in the deliberations around the
20 establishment of the Melbourne Response and its structure?
21 A. That’s correct.
23 Q. Are you aware who the people were who held that view;
24 in other words, parishioners, bishops, people within the
25 hierarchy of the church; do you know?
26 A. I think, as best as I can recollect, all of them. All
27 of those categories – there would have been those views
28 held in all of those categories of people.
30 Q. If we can just scroll up to paragraph 21. In that
31 paragraph, in the middle of the paragraph approximately,
32 you say that Professor Ball was identified as someone with
33 appropriate qualifications and experience to head up what
34 became Carelink. At that time did you, Mr Leder, know that
35 he had given expert evidence in mitigation of sentence for
36 convicted perpetrators of child sexual abuse?
37 A. I don’t recall.
39 Q. At that time did you know that Professor Ball had in
40 his professional capacity treated priests who had been
41 involved in either child sexual abuse or other sexual
42 indiscretion and impropriety?
43 A. As best as I recall, I did know that Professor Ball
44 had been involved in the treatment of sex offenders. But
45 that experience was seen as being relevant and beneficial
46 to the role that it was proposed that he hold.
1 Q. Why did you or perhaps if you are speaking about the
2 present why do you see that as being relevant experience
3 with regard to dealing with victims in the capacity of
4 director of Carelink?
5 A. For several reasons. I think first, and perhaps this
6 reflects my experience as a lawyer, but I think
7 understanding both sides of an issue or a problem is
8 helpful, as a general matter. I think also that I can say
9 in my dealings with Professor Ball he was very helpful to
10 me in assisting my understanding of the pernicious nature
11 of paedophilia and in particular the fundamental
12 distinction between adult sexual attraction and paedophilic
13 attraction. He was able to explain to me that while the
14 fact – I’m sure I don’t do justice to him in providing this
15 explanation, but while the fact that an adult is sexually
16 attracted to another adult doesn’t mean that that adult is
17 sexually attracted to everybody, it’s the nature of
18 paedophilia that if a paedophile is attracted to one child
19 it’s entirely probable that they will be indiscriminate.
21 Q. I understand from what you say at the end of that
22 paragraph which is before you that you were involved in,
23 with others, a discussion with Professor Ball in the
24 lead-up to his appointment; is that right?
25 A. Yes.
27 Q. Was he asked, do you know, whether there was anything
28 in the work that he had done which might pose an obstacle
29 to his acceptance of the position or his appropriateness to
30 accept the position?
31 A. I don’t recall, but I expect that he would have been.
33 Q. Are you aware whether any other candidates beyond
34 Professor Ball were considered for the position?
35 A. I believe that there were others. I don’t now – in
36 preparing my statement I did reflect on that and I don’t
37 have any recollection of who they were specifically. But
38 I do believe that I attended – either that I attended a
39 meeting or meetings or that there were discussions with
40 some other candidates or that I attended a meeting – at
41 least I think that I attended a meeting where other
42 candidates were – the names of other candidates were
43 proposed and discussed. I have a dim recollection of that.
45 Q. And at the end of the day was it the position that
46 Professor Ball was considered to be the most appropriate
47 for the job or was it the position that the other
1 candidates were regarded as not appropriate for the job?
2 A. It’s the former, that Professor Ball was considered
3 the most appropriate candidate or the standout candidate,
4 and therefore to the extent that there was a consideration
5 of others that consideration was not pursued.
7 Q. But there would have been others who would also have
8 been appropriate?
9 A. Oh, yes, I’m sure there would have been.
11 Q. Later when this issue of Professor Ball’s position
12 arose with the Fosters you will recall that you recognised
13 that the Fosters’ concern with having to deal with
14 Professor Ball had to be respected?
15 A. Yes.
17 Q. And you said on another occasion that you could
18 understand the Fosters’ reaction to having to deal with
19 Professor Ball?
20 A. Yes.
22 Q. And at the time that Professor Ball was appointed was
23 it not appreciated that there might be victims who would
24 have that reaction which you recognised needed to be
26 A. Yes, and it was contemplated that alternative
27 arrangements would be made, as I recommended occur in the
28 case of the Fosters.
30 Q. So you are saying that that contemplation existed even
31 prior to the establishment of the Melbourne Response?
32 A. I believe so.
34 Q. Dealing with the cap on compensation, if I can show
35 you paragraph 25 on the following page of your statement.
36 You will see that in the third line you say that your
37 “recollection is that the Archbishop” – that’s Archbishop
38 Pell, I take it?
39 A. Yes.
41 Q. “… was not entirely comfortable with the imposition
42 of a cap”. Did the Archbishop explain what his
43 reservations were?
44 A. As best as I recall, the Archbishop’s position was
45 that, legal liability or no legal liability, payments ought
46 be made to victims and that when it was suggested that
47 those payments might be capped in some way he was initially
1 uncomfortable with that.
3 Q. Yes, that’s what you have said in your statement. The
4 question I’m asking or what I’m seeking to have answered is
5 did the Archbishop explain why he was uncomfortable with
6 that; what was the nature of his reservation with regard to
7 a cap?
8 A. As best as I recall, it was simply the existence of a
9 cap was something that could be seen as a negative.
11 Q. And in the next sentence in that paragraph you say
12 that an uncapped liability was to some extent inconsistent
13 with the absence of legal liability?
14 A. Yes.
16 Q. I take it that you are stating your opinion in that
18 A. My opinion and no doubt the explanation that was given
19 to the Archbishop.
21 THE CHAIR: Q. Mr Leder, there are a couple of questions
22 I have about this. It’s plain that this discussion started
23 from the point where the Church accepted that money should
24 be paid; correct?
25 A. Well, Your Honour, I think the discussion – I agree
26 with Your Honour, but if I could answer the question —
28 Q. That’s the first proposition —
29 A. — this way; that as part of a range of measures that
30 would be provided to victims, yes.
32 Q. Well, yes. But there was an acceptance that money
33 should be paid?
34 A. Yes.
36 Q. And that acceptance or accepting that position –
37 sorry, that decision was made with advice from you that
38 there was no legal liability?
39 A. Yes.
41 Q. So that you were involved in discussions where, it
42 having been agreed no legal liability, it was nevertheless
43 agreed that it was appropriate that money should be paid to
44 victims of abuse by church persons?
45 A. Yes.
47 Q. Now critical to that decision of course is that the
1 Church accepted that the abuse was occasioned by one of
2 their persons?
3 A. Yes.
5 Q. Now, the understanding that you have given us in the
6 subsequent paragraphs is that the amount of money that was
7 accepted as appropriate for the cap was defined by
8 reference to statutory schemes of universal application?
9 A. I wouldn’t agree that it was defined by that,
10 Your Honour. The cap – as I have sought to explain in my
11 statement, the cap was set having regard to a number of
12 factors, including the absence of legal liability, the
13 recognition by the Church that it ought nonetheless make
14 payments, a need to have some mechanism for quantifying
15 those payments, and a need to have some view about where
16 the quantum of those payments ought sit. So it was all of
17 those factors together.
19 Q. At paragraph 27 you make plain what you were looking
21 A. Well, yes, Your Honour. But there were preceding
22 considerations. So as I have sought to explain from
23 paragraph 23 of my statement on was that the first question
24 was, “What sort of methodology ought be employed in order
25 to assess compensation and whether or not it be” —
27 Q. No, let’s come back to my question. What you were
28 looking at in defining the cap was the statutory schemes
29 that had been provided which were schemes of universal
31 A. Yes, yes.
33 Q. That’s what you were looking at?
34 A. Yes.
36 Q. And Cardinal Pell has already told us that he sees
37 that as the appropriate place to look?
38 A. Yes.
40 Q. Now, you understand, though, of course that there is
41 no question of legal liability in relation to a statutory
42 State scheme for victims of crime, is there?
43 A. That’s sometimes but not always the case, in my view,
44 Your Honour.
46 Q. The entitlement to compensation under statutory
47 schemes for the victims of crime comes irrespective of
1 whether the State had a responsibility?
2 A. Yes.
4 Q. If the State had a responsibility you can sue them at
5 common law for damages; correct?
6 A. That’s correct.
8 Q. So this is universal – a scheme of universal
9 application without any consideration of whether the State
10 had any part at all to play in the crime that resulted in
11 the damage to the individual?
12 A. The application of the scheme is such, yes.
14 Q. The entitlement to be paid comes irrespective of
15 whether the State had any relationship to the crime that
16 was committed?
17 A. Yes. My understanding would be, though, that in
18 determining the amount of compensation regard might be had
19 to the role of the State. That’s my understanding.
21 Q. Well, we would go over old ground if I were to say to
22 you if the State had a responsibility you can sue them at
23 common law?
24 A. Yes.
26 Q. We have to look at, amongst other things, a redress
27 scheme. Do you think that it is appropriate to apply the
28 framework, financial framework, that such a statutory
29 scheme provides available to any member of the community
30 irrespective of any relationship between the crime and the
31 State to a crime committed by a person from the Church upon
32 a child who was entrusted to the Church’s care? Do you
33 think it’s appropriate to go to the statutory scheme and
34 say, “Well, that’s what that provides therefore this is
35 what the redress scheme should provide?”
36 A. My view is that one would look at statutory schemes
37 and see that as a minimum, and that one starting point
38 would be plainly one would not go beyond that. My
39 expectation would be that one would go above that, as the
40 Melbourne Response sought to do. So I would see it as a
41 minimum, but not as defining what a redress scheme ought
44 Q. I didn’t understand the Melbourne Response to go
45 beyond the statutory arrangements, did it?
46 A. Well, it did, Your Honour, in several respects. First
47 but principally the crimes compensation scheme at that time
1 had a maximum of $50,000 all-in.
3 Q. That’s what was defined by the Church’s scheme?
4 A. With respect, no, Your Honour, because under the
5 statutory scheme that was inclusive of treatment and
6 counselling costs, and another component of the Melbourne
7 Response was uncapped indefinite treatment and counselling
8 for as long as required.
10 Q. So that’s the difference you see, is it?
11 A. Yes, Your Honour.
13 Q. Okay. Do you accept that $50,000 would fall well
14 short of what any common law claim might be in many cases,
15 notwithstanding the fact that counselling was paid for?
16 A. Yes, I do. Yes.
18 Q. And do you accept that seeking to grade the
19 entitlements between nought and 50,000, given the range of
20 damage that we know occurs to people lifelong, is an
21 artificial exercise?
22 A. I don’t understand Your Honour’s use of the word
25 Q. You know of the range of very great damage that can be
26 occasioned to individuals by reason of abuse when they are
27 children, don’t you?
28 A. Yes.
30 Q. And to distinguish what is a $20,000 claim from what
31 is a $40,000 claim, given the severity of harm that can be
32 occasioned along the spectrum, is an artificial exercise,
33 isn’t it?
34 A. I don’t agree with that, Your Honour.
36 Q. You don’t? So you think it is possible to say it is
37 just to someone, “You get $20,000, and it is just that you
38 get 40,” and the worst case only ever achieves 50?
39 A. Well, Your Honour, I really can’t answer that question
40 without going back to the underlying question of whether
41 there is legal liability or not and to ask myself, “Well,
42 how would this case be assessed in a court and what factors
43 would a court have regard to?” I absolutely accept that
44 were liability and causation and so on established then in
45 that sense the quantum would be significantly higher.
47 Q. It may be difficult for you to think outside that
1 framework. This whole discussion proceeds from the
2 assumption that the Church is not legally liable; we
3 discussed that at the beginning?
4 A. Yes.
6 Q. But, nevertheless, the Church accepts responsibility
7 for the damage occasioned by one of its persons to a child?
8 A. Yes.
10 Q. So do you think it’s really appropriate to then
11 introduce – reintroduce later the legal issues when one is
12 looking at what might be a just response given the range of
13 very great damage that can be occasioned to children?
14 A. I think, Your Honour, that in setting the parameters
15 of any redress scheme, be it capped or uncapped, that one
16 has to have regard to all of those factors. I don’t think
17 that one can meaningfully look at the question of redress
18 in isolation of all of those factors.
20 Q. Some people, many people, have said to us that the
21 amounts of money that were provided as a lump sum are token
22 amounts. What do you say to that?
23 A. I would say that when the amount was set in 1996 it
24 was set in a way that I have explained. I would say that
25 as things stand today it is clear that for some victims the
26 ability to receive only up to $75,000 in lump sum
27 compensation indicates that, that the compensation
28 component of the Melbourne Response is not achieving the
29 objective that was set out – it was set out to achieve in
30 terms of delivering a recognition – a financial recognition
31 of the harm, and I’m absolutely supportive of the
32 commitments that the Archbishop has made to review those
35 MR STEWART: Q. Mr Leder, you say in that paragraph we
36 were looking at which is before you, paragraph 25, that an
37 uncapped liability was to some extent inconsistent with the
38 absence of legal liability. Why is that? Can you explain
39 why it is inconsistent?
40 A. I think it is inconsistent in the sense that if there
41 is – Your Honour, I’m going to go over the ground that
42 I have just gone over with Your Honour, and I apologise for
43 that. But in answering the question if there is no legal
44 liability then there is always room for someone to say, “If
45 there is no legal liability then I will not pay you.”
46 That’s not to say that that was the Church’s position, but
47 rather that in deciding where the appropriate compensation
1 was seen to be set it was not irrelevant that there was no
2 legal liability.
4 Q. To say that it’s not irrelevant is not the same as
5 saying there is, albeit in your words to some extent, an
6 inconsistency between the two?
7 A. Well, I think there’s an inconsistency to the extent
8 that one says and only to the extent that one says that if
9 there is no legal liability then one ought not pay, and
10 that was not what was being said but that’s what I mean by
11 that paragraph of the statement.
13 THE CHAIR: Q. No, but as I understand it, because there
14 was no legal liability, it was accepted that a lesser sum
15 than might ever be achieved if there was legal liability
16 was appropriate?
17 A. Yes, Your Honour.
19 Q. So it influenced the amount?
20 A. Yes.
22 Q. Recognising that the amount could not truly meet the
23 need that some people might have?
24 A. Yes, Your Honour.
26 MR STEWART: Q. You said that the Archbishop was
27 uncomfortable with there being a cap. Of course one of the
28 things that could have been done would have been for the
29 Archbishop to say that this scheme will accept an
30 obligation to pay as if the Archbishop was in the same
31 position as any other employer whose employees committed
33 A. Yes, that could have been done.
35 Q. And, that being one of the options on the table which
36 would have paid the full amount of common law damages, can
37 you explain why that option wasn’t an option or the option
38 that was adopted?
39 A. I think there’s two components to your question. The
40 first is the question of whether the intent was to pay
41 damages assessed as though they were common law damages on
42 the basis that liability was present, and that was not the
43 decision taken.
45 The second question is, given a desire to have a
46 process for working out an amount of money to be paid, what
47 ought that process be and ought that process be some sort
1 of arbitral panel, some sort of mediated process, in other
2 words a process where there was an applicant for
3 compensation and a payer of compensation and either an
4 adjudication or a negotiation or mediation of some sort or,
5 as was ultimately decided, to have an independent
6 assessment made without the Church being present
7 contradicting or cross-examining or challenging the
8 victim’s account.
10 THE CHAIR: Q. Mr Leder, I think the difficulty which we
11 will have to grapple with comes from the fact that, no
12 legal liability, common law damages can’t happen; but
13 whether it’s appropriate to then pitch the entitlement
14 where you pitch it or where the State has pitched it – in
15 New South Wales now a maximum of $10,000 —
16 A. Yes.
18 Q. — for statutory victims of crime where there is
19 absolutely no necessary relationship between the State and
20 the person who is damaged, whether it’s appropriate to go
21 to that position is a live question. I understand what you
22 did back then, but I’m sure you understand now why that may
23 not be where you should go?
24 A. Yes, well, Your Honour, I think back then it was seen
25 that the statutory scheme suggested a minimum level above
26 which the Church sought to operate and above which the
27 Melbourne Response has sought to continue to operate. So,
28 as I said before, I don’t suggest that the statutory
29 schemes provide the appropriate levels to pitch a redress
30 scheme. I think they set a floor above which the redress
31 scheme ought operate, and the question as to how far above
32 is absolutely a live one.
34 Q. We will ask Cardinal Pell about this tomorrow, but my
35 understanding has always been that he has seen himself as
36 adopting schemes that reflected the states’ position; in
37 other words, what the states have done was the appropriate
38 way to go?
39 A. All I can say in response to Your Honour is that back
40 in 1996 in Victoria the crimes compensation maximum was
41 50,000, as I said, of which 20,000 was the maximum for pain
42 and suffering and the remaining 30,000 was reimbursement of
43 medical and like expenses. That’s my understanding. So in
44 that sense the valid comparison is between 20,000 under the
45 statutory scheme and 50,000 under the Melbourne Response.
47 THE CHAIR: Yes. We might take the luncheon adjournment.
2 <THE WITNESS WITHDREW
4 LUNCHEON ADJOURNMENT
6 <RICHARD ALEXANDER LEDER, recalled: [2.00 pm]
8 THE CHAIR: Yes, Mr Stewart.
10 <EXAMINATION BY MR STEWART:
12 MR STEWART: Q. If we can take a look at paragraph 26 of
13 your statement, Mr Leder. You say there that the figure of
14 $50,000 was settled on relatively quickly. Who proposed
16 A. Who proposed – I don’t recall specifically who
17 proposed it.
19 Q. Was any budgeting or forecasting done in order to
20 arrive at an appropriate cap?
21 A. No, not so far as I know.
23 Q. Were any actuarial calculations done?
24 A. Not so far as I know.
26 Q. So am I to understand you then that no budgeting or
27 forecasting in relation to how much might have to be paid
28 was done?
29 A. Not so far as I know.
31 Q. And nor how much it might cost to run the scheme?
32 A. Again, not so far as I know.
34 Q. So are we to understand that affordability was not a
35 consideration in arriving at a cap?
36 A. That’s correct.
38 Q. If we could look at tab 13. This is, as it were, the
39 culmination of a number of different drafts of the Four
40 Part Plan and this is the one that was ultimately announced
41 on 30 October 1996; is that right, Mr Leder?
42 A. Yes.
44 Q. What I intend doing is looking at each of the
45 components of it and we will have a discussion of each of
46 those and we will keep coming back to this document. So
47 starting then on page 2 and at paragraph 2, one of the
1 components is obviously the Independent Commissioner. In
2 your understanding at this time of the conceptualisation
3 and adoption of this scheme, the reference to independence
4 there is an independence in what sense?
5 A. An independence from the Archbishop and the
8 Q. And what were the considerations in that independence
9 being seen as important?
10 A. Well, I think they were seen as being completely
11 fundamental and really reflected – had been reflected in
12 all of the discussions that I had been involved in with
13 Archbishop Hart since I first met him in late July 1996,
14 that the proposition was and is that there ought be an
15 investigation of allegations independent of the Church.
17 Q. And I take it by your use of the word “investigation”
18 you are including also a decision on the allegation?
19 A. Yes.
21 Q. So one sense of independence might be independent of
22 external influence in decision making; that was part of it,
23 I take it?
24 A. Yes, it was.
26 Q. Another sense of independence might be structurally
28 A. Yes.
30 Q. Was that another component to the independence?
31 A. Yes.
33 Q. And of course another would be the perception of
34 independence. That would be important too, in other words
35 complainants perceived and understood the Independent
36 Commissioner to be independent of the Archbishop and the
38 A. Yes.
40 Q. If we can just do a brief excursion backwards to tab
41 9. A few days earlier you had done a brief comparison of
42 the emerging Towards Healing document and the Melbourne
43 Response document as it was at that time; is that right?
44 A. Yes.
46 Q. And this table sets out your points of comparison; is
47 that right?
1 A. Yes.
3 Q. And in point 4 you will see under the left-hand column
4 which is headed “National document” which was obviously the
5 Towards Healing document; is that right?
6 A. Yes.
8 Q. It refers to clause 3.4 which defines contact persons
9 to receive complaints, which are then assessed by
10 assessors, and then in the right-hand column, which is the
11 column for the Archdiocese’s Four Part Plan, it records
12 that it is “to ensure the independence of the Commissioner,
13 the initial complaint is received by his office.
14 Assessment is performed by him.” You see that?
15 A. I do.
17 Q. I take it you shared the view that that part of the
18 Melbourne Response was preferable to the Towards Healing?
19 A. I did. But I see merits in both. I can absolutely
20 understand the proposition that for people to go and see a
21 QC is confronting. I can also understand that to have to
22 tell your story or part of your story to a contact person
23 and then have to tell it again to an assessor is difficult
24 for a victim. So I can see merits in both. But ultimately
25 my personal view was that, so long as the right person was
26 chosen as Independent Commissioner, that it was preferable
27 to have a system that hopefully required the victim to only
28 have to tell their story once.
30 Q. As I understand it, the way in which the Towards
31 Healing system has played itself out, and you can tell me
32 whether you are aware of this or not, it is sometimes the
33 case that the contact person records the story for the
34 assessor and that it is not then necessary for the victim
35 to retell the story to the assessor?
36 A. I’m sure that occurs on some occasions. Certainly
37 back in 1996 what was anticipated was that there would be
38 many more contested hearings than there were, and it does
39 seem to me that if there is a contest, so if the accused
40 priest is denying the allegations, then it would be
41 difficult for the assessor or Independent Commissioner,
42 whoever it is having to decide on the validity of the
43 complaint, to make that decision without hearing directly
44 from the victim. I think it would be difficult to resolve
45 that sort of contest based on – based only on written
1 Q. Yes. Well, that’s a matter I will come back to. But
2 just while on this question of making the decision, at the
3 time that the Melbourne Response process was adopted had
4 consideration been given to the standard of proof that
5 might be applied by the Independent Commissioner in making
6 a decision?
7 A. Not so far as I can remember, no.
9 Q. So would it be right that that was essentially
10 something left to the Independent Commissioner?
11 A. Yes.
13 Q. And we have heard Mr O’Callaghan’s evidence in
14 relation to that?
15 A. Although if I may, having said that, one of the things
16 that was being considered at the time was how the
17 Independent Commissioner process sat within Canon Law and,
18 as best as I can remember, I did have some understanding of
19 the standards of proof required by Canon Law. So I think
20 that we were – without necessarily having a vision of the
21 entire way through this difficult issue, it was seen as
22 important or relevant – at least relevant to think about
23 how the findings of the Independent Commissioner would have
24 status or relevance at Canon Law.
26 Q. While on the subject of Canon Law, the Independent
27 Commissioner’s process was seen as fulfilling the role of a
28 preliminary investigation under Canon 1717; is that right?
29 A. Yes.
31 Q. If we can go to tab 1, and scroll down to look at
32 Canon 1717, number 1. “Whenever an ordinary” and an
33 ordinary in this case is a reference to the Archbishop?
34 A. Yes, I believe so.
36 Q. “Has knowledge which at least seems true of a delict”
37 and a delict would be in this context a crime?
38 A. Yes.
40 Q. “He is carefully to inquire personally or through
41 another suitable person about the facts, circumstances and
42 imputability, unless such an inquiry seems entirely
43 superfluous.” So that’s the threshold, as it were, to get
44 a preliminary inquiry going, is that there is information
45 or knowledge which at least seems true?
46 A. Yes.
1 Q. And then there are various other provisions, and in
2 sub 3, “The person who conducts the investigation” – that
3 would be the Independent Commissioner, am I right?
4 A. Yes.
6 Q. “Has the same powers and obligations as an auditor.”
7 That is a reference to a judge within the Canon Law system?
8 A. I don’t know, but that does seem to make sense.
10 Q. And then in 1718, number 1, “When it seems that
11 sufficient evidence has been collected, the ordinary is to
12 decide”, and then there are three options that are set out,
13 “whether a process to inflict or declare a penalty can be
14 initiated; or whether, attentive to Canon 1341, this is
15 expedient; or whether a judicial process must be used; or,
16 unless the law forbids it, whether the matter must proceed
17 by way of extra judicial decree.” So they are the options
18 that become available to the ordinary once sufficient
19 evidence has been collected. If we can go over to the next
20 page. So, in 1717 itself there isn’t a standard of proof
21 particularly, as I see it. Do you have a different
23 A. I would agree with you that looking at 1717 it doesn’t
24 seem to say that, or it doesn’t say that. But I don’t know
25 whether there are other provisions of Canon Law that would
26 impose a standard of proof. I have an understanding that
27 for certain Canon Law purposes a standard called moral
28 certainty is required and I have been told by
29 Mr O’Callaghan that his understanding is that that is
30 equivalent to beyond reasonable doubt in our system. But
31 I’m really far from being an expert on these matters.
33 Q. And that would be in the event that the ordinary
34 exercising a decision under Canon 1718 decides that there
35 be a penal process; in other words, a canonical, judicial
36 process, then that standard would apply. But if you don’t
37 know —
38 A. I really don’t know.
40 Q. I have had the benefit of having to do a whole hearing
41 on Canon Law as the Commissioners have had to hear about it
43 A. I really can’t. I really don’t know.
45 Q. Would it be right, then, that you don’t know that
46 Canon Law generally does not know an oral process, what we
47 were told previously, that even in the judicial stage it
1 deals with matters on the documents, including sworn
2 statements or affidavits, and decides on that basis?
3 A. I have been told at some point by a Canon Law adviser
4 that one of the practical difficulties of seeking to impose
5 a Canon Law penal process to adjudicate on an allegation of
6 sex abuse is that the victim and the offender would need to
7 confront each other. So I did have an understanding that
8 there would need to be an oral hearing with a panel of
9 priests sitting as judges, and from my perspective I could
10 see that that – that strikes me as a quite inappropriate
11 way of trying to allow a victim to prove their case. So
12 I do have an understanding that somewhere along the line
13 there is an oral hearing, but I may be wrong about that.
15 Q. I’m not at all sure that’s consistent with what we
16 learnt in a previous hearing, but we can put that aside for
17 present purposes. That’s not something that has to be
18 resolved by any means in this hearing. You have said that
19 from the outset it was anticipated that there would be
20 contested hearings in the event that the accused priest
21 denied the allegations?
22 A. Yes.
24 Q. Was some other way or process to resolve disputes such
25 as that considered; for example, an investigative process
26 rather than an adjudicative process?
27 A. No, I don’t think so. I think that one of the things
28 that was really absolutely fundamental was for there to be
29 a way of dealing with allegations that either didn’t go to
30 the police or hadn’t gone to the police or had gone to the
31 police but that hadn’t resulted in an outcome, and
32 I suppose it was – I suppose it was anticipated that there
33 would be situations where victims made allegations and the
34 accused priest denied them and as best as I recall the view
35 was that that contest was best dealt with in an oral
36 hearing along the lines, as Mr O’Callaghan said yesterday,
37 along the lines of a Magistrates’ Court summary hearing.
39 Q. Am I to understand you to be saying that an
40 alternative process wasn’t consciously considered?
41 A. That’s my memory, yes.
43 Q. That as lawyers schooled in the common law tradition,
44 it would be – our first point of reference would be to have
45 a mock trial or a mini-trial?
46 A. Yes, a mini-trial, yes.
1 Q. Are you aware that in the Towards Healing process very
2 often these matters are dealt with by an investigator who
3 actively investigates and then comes to a finding which the
4 Archbishop then considers?
5 A. I am. I am aware of that.
7 Q. Do you have thoughts as to the pros and cons of those
8 competing processes?
9 A. I do. I think one of the challenges that both systems
10 have is on the one hand to deliver support and assistance
11 to victims, but on the other hand to remember that when a
12 victim makes an allegation against a priest who is
13 otherwise alive, well and in ministry, that can be career
14 ending for the priest, and that there therefore does need
15 to be a process – in cases where there’s a conviction or
16 there’s an admission by the accused this isn’t a problem –
17 but in the situation where you have someone not otherwise
18 accused who’s operating as a priest, the allegations
19 against them are clearly very serious and there needs to be
20 the best system available for trying to determine truth and
21 I suppose, as you said, with the perspective of our
22 Australian legal system we see that as being a hearing
23 where there’s oral evidence and the right to test evidence
24 with cross-examination.
26 Q. Another consideration, aside from the important one
27 you have mentioned, of course, would be one of cost.
28 That’s a costly process to have a hearing of that nature
29 presided over by a senior silk and so on; would I be right?
30 A. It certainly comes at a cost.
32 Q. But in deciding how to go ahead with the Melbourne
33 Response process, cost wasn’t an issue particularly, as
34 I understand it?
35 A. That’s correct.
37 Q. I’m just trying to understand the way in which such a
38 hearing would be conducted. The Independent Commissioner
39 himself, and we will come to this in a minute, would be
40 briefed in a formal sense by you, am I right?
41 A. I don’t brief the Independent Commissioner separately
42 in relation to a contested hearing, no.
44 Q. I wasn’t meaning to imply that. I mean at the
45 outset —
46 A. In 1996.
1 Q. He took a brief from Corrs?
2 A. Yes.
4 Q. To be the Independent Commissioner?
5 A. That’s correct.
7 Q. And then when the need for an oral hearing arose there
8 was then another barrister appointed, typically Mr Gleeson
9 as I understand it, to act as counsel assisting?
10 A. Yes.
12 Q. And would there then be a separate brief to that, at
13 that time, junior barrister?
14 A. I briefed Mr Gleeson in 1997 and it was really, if you
15 like, an ongoing brief to act as counsel assisting as
16 required in matters as arose and as requested by the
17 Independent Commissioner, and that would occur without
18 reference back to me often.
20 Q. And in the presentation of the case, who would counsel
21 assisting be taking instructions from?
22 A. I had no involvement in that.
24 Q. I suppose I will ask Mr Gleeson about this in due
25 course, but, insofar as you know, would counsel assisting
26 together with the Independent Commissioner essentially be
27 left to independently determine what would be investigated
28 and how the evidence would be presented and how the case
29 would be run?
30 A. Yes.
32 Q. Because you would appreciate the disadvantage in a
33 process that left essentially the complainant to put
34 together a case of evidence against a priest without active
35 assistance from counsel assisting and potentially the
36 Independent Commissioner who has been appointed to
37 investigate it?
38 A. I would understand that and that is the precise
39 purpose for having counsel assisting.
41 Q. If we can go back to tab 13, this time at paragraph
42 2.4. Firstly in relation to the first bullet point which
43 deals with the terms and conditions of appointment of the
44 Independent Commissioner, where it states that:
46 Immediately upon a complaint of sexual
47 abuse being made to him, the Commissioner
1 shall inform the complainant that he or she
2 has an unfettered and continuing right to
3 report the matter to the police.
5 These terms had been discussed with the police before they
6 were adopted and announced; is that right?
7 A. Yes, that’s right.
9 Q. And this is one of the things that the police had
10 asked or said should be part of the terms and conditions?
11 A. I think that first point was in our – it was in the
12 proposal that we took to the police and it was the second
13 point, the encouragement of the exercise of that right, was
14 the input from Assistant Commissioner Brown.
16 Q. And then in the fourth bullet point on the screen it
19 The Commissioner will respect obligations
20 of confidentiality imposed on him by
21 complainants to the maximum extent
22 permitted by law. Except where those
23 obligations preclude him from so doing, he
24 may, if he considers it appropriate, report
25 matters to the police.
27 Questions or obligations of confidentiality were then also
28 set out in the Independent Commissioner’s terms of
29 appointment; is that right?
30 A. Yes, that’s right.
32 Q. So if we go to tab 36 you will see that’s the
33 appointment of the Independent Commissioner and his terms,
34 which changed slightly on subsequent occasions, but dealing
35 with them as they were originally. Then particularly on
36 page 4 we have a look at paragraph (x) at the foot of the
39 The Commissioner shall treat as
40 confidential and privileged all information
41 acquired by him in the course of his
42 investigation, provided that (subject to
43 subclause (1)(xi)) the Commissioner may, if
44 he considers it appropriate so to do,
45 provide the whole or part of such
46 information to the police and with the
47 consent of the complainant to the
1 Compensation Panel.
3 And then if we look at the next paragraph, paragraph (xi),
4 and it states:
6 If a complainant, prior to stating the
7 facts and circumstances constituting his or
8 her complaint informs the Commissioner that
9 he or she is only prepared to divulge those
10 facts and circumstances to the Commissioner
11 upon his assurances that he will not,
12 (unless required by law) disclose those
13 facts and circumstances to any person other
14 than a person nominated by the complainant,
15 the Commissioner (unless required by law so
16 to do) shall not disclose those facts and
17 circumstances to any other person save to
18 members of his staff from whom he shall
19 have procured an undertaking of
22 From this we are to understand, of course, that
23 confidentiality was given a high premium in the
24 establishment of this scheme?
25 A. Yes, to the extent that it’s requested by the
26 complainant, yes.
28 Q. And as you understand paragraph (x), perhaps we can
29 just scroll up again to the beginning, “The Commissioner
30 shall treat as confidential and privileged all information
31 acquired by him in the course of his investigation”, in
32 preparing and being part of the process of preparing and
33 adopting this scheme, how did you understand that?
34 Confidential to whom?
35 A. I think the context is that he was appointed to
36 investigate and to report to the Archbishop and the
37 Compensation Panel as appropriate, and to interact with
38 Carelink as appropriate. So I understand the
39 confidentiality as permitting him to report to the
40 Archbishop and the Archbishop’s agents and so on,
41 permitting him to report to the Compensation Panel where
42 that consent was given as part of the application for
43 compensation, and permitting him to deal with Carelink, but
44 otherwise to treat the information as confidential so that
45 if, for instance, someone else sought information from him,
46 he could only provide that information if he was subpoenaed
47 or ordered to do so.
2 Q. Let’s break that down a bit. Clearly it includes
3 confidentiality – within confidentiality would be the
4 Commissioner himself and his immediate staff and presumably
5 also any counsel assisting appointed from time to time.
6 That would be uncontroversial?
7 A. Yes.
9 Q. Then the Compensation Panel of course is excluded, in
10 other words the Compensation Panel is a body to whom the
11 information must not be given unless consent has been
13 A. That’s right.
15 Q. Although Carelink is not mentioned specifically in
16 this clause, the practice was to acquire a specific release
17 to give the report to Carelink too; am I right?
18 A. Yes, that’s right.
20 Q. It’s not immediately obvious to me why the Archbishop
21 and his agents, by which I take it you would be principally
22 referring to yourself, why they should be included; in
23 other words, that the Commissioner would be open to giving
24 information to them?
25 A. I’m including also the Vicar General when I think of
26 agents. But there would be – it would be inconsistent with
27 the appointment of the Independent Commissioner for him to
28 investigate a complaint, conclude that a priest was guilty
29 and then not be able to tell the Archbishop about it. The
30 whole point of his appointment in that regard was so that
31 he can report to the Archbishop and recommend action.
33 Q. A distinction may be drawn, I suppose, between the
34 findings of the Independent Commissioner and more generally
35 the information that he acquired?
36 A. I agree, and I think I’m speaking particularly of the
37 findings and the recommendations and I don’t think it’s
38 necessarily easy to draw an immediate – an obvious
39 demarcation always because as part of the – the findings
40 are more than guilty or not guilty. The findings must
41 necessarily include some account of the circumstances, so
42 when it happened, where it happened and so on.
44 Q. There’s another place where this may be further
45 illustrated, and that’s at tab 18 in your memorandum to
46 counsel in the original appointment of Mr O’Callaghan on
47 11 November 1996. If we scroll down that, familiarise
1 yourself with it. But in particular the third paragraph
2 that commences:
4 With this memorandum and the attached
5 backsheet, we confirm that your appointment
6 as Commissioner is made by us on the
7 Archbishop’s behalf, and that your
8 relationship with the Archbishop is one of
9 barrister and client.
11 I will get to paragraph 4 in a minute, but as far as we
12 have got, that would of course in the ordinary course
13 involve any knowledge gained by the barrister is to be
14 freely given to the client?
15 A. Yes, I agree.
17 Q. And then in paragraph 4 that’s then qualified, and we
18 can have a look at that:
20 Because of the sensitive nature of some of
21 the information that you will receive in
22 your capacity as Commissioner, and the need
23 for confidentiality to protect
24 complainants, our client recognises that
25 you may wish to keep information and
26 documents that you receive or create
27 confidential to yourself and such other
28 persons as you select. Accordingly, you
29 are briefed on the express basis that all
30 information and documents that you receive
31 or create in your capacity as Independent
32 Commissioner are your property, and will
33 remain your property at the conclusion of
34 your retainer. Our client waives any
35 rights that he may otherwise have to such
38 So that’s perhaps starting to draw the line between
39 findings and other information?
40 A. Yes, and it’s also reversing the ordinary
41 lawyer/client information flow.
43 Q. And the great relief of a barrister to send everything
44 back at the end of a case, whereas here Mr O’Callaghan has
45 been told to keep it and it’s his property?
46 A. Yes.
1 Q. And then in the fifth paragraph, if we can scroll down
2 a bit more:
4 However it may be that for us to fulfil our
5 role as instructing solicitors, there will
6 be matters that you wish to disclose to us.
7 We agree to receive such information in
8 confidence, and will be happy to provide
9 formal confidentiality undertakings at your
12 Firstly in relation to that, were you envisaging that at
13 the Independent Commissioner’s request you, the solicitors,
14 would keep whatever he’s given to you confidential even
15 from your client?
16 A. Yes, yes.
18 Q. And that of course does happen in other contexts of
20 A. Yes.
22 Q. Did it ever happen in your experience through the
23 years of the Melbourne Response where such a circumstance
24 arose where the Independent Commissioner made information
25 available to you but only on your assurance to keep it
26 confidential to yourself?
27 A. Yes.
29 Q. It did arise?
30 A. It did.
32 Q. Can you give us a sense of the circumstances in which
33 that arose?
34 A. Yes, most recently it has arisen in relation to this
35 Royal Commission and in relation to the parliamentary
36 inquiry, that my firm has been provided with information
37 and in particular the information that permits the
38 compilation of the statistics to which Mr O’Callaghan has
39 referred, and there are confidentiality undertakings that
40 I and other lawyers from Corrs have given which clarify
41 that we hold that information for Mr O’Callaghan and not
42 for the Archdiocese.
44 Q. So when Mr O’Callaghan gave evidence that his files
45 have now all been put on Ringtail and they are available
46 for access at Corrs, it would be under that arrangement,
47 would it?
1 A. Yes, expressly under that arrangement.
3 Q. If we can revert to Canon Law briefly and back to tab
4 1. On the second page, Canon 1719 you will see says:
6 The acts of the investigation, the decrees
7 of the ordinary which initiated and
8 concluded the investigation, and everything
9 which preceded the investigation are to be
10 kept in the secret archive of the curia if
11 they are not necessary for the penal
14 Now, would you agree what this envisages is that an
15 ordinary, an Archbishop in this case, would have an archive
16 to keep these classes of documents?
17 A. That’s what the words appear to mean.
19 Q. And the acts of the investigation are the documents
20 created or presented and provided during the course of the
22 A. I don’t know. I don’t know what “acts” means.
24 Q. Was there any consideration, to your knowledge, of how
25 to reconcile this requirement of Canon Law and the idea
26 that the files created by the Independent Commissioner in
27 his investigation would remain his property and
28 confidential, at least to some extent, to him separate from
29 the Archbishop?
30 A. As best as I recall, we really didn’t consider Canon
31 1719 and as best as I recall I really only – it’s possible
32 that I have seen it at some previous time, but I really
33 only became aware of its provisions yesterday when
34 Mr O’Callaghan was being asked about this.
36 Q. Perhaps you won’t be able to assist us on this, and
37 you say so if that’s the case, but you will infer from what
38 it is said there in Canon 1719 that any particular
39 investigation under 1717 requires a decree of the ordinary
40 to initiate the investigation and another one to conclude
41 the investigation; are you aware of that?
42 A. I can see that, but I don’t know whether that is the
43 preliminary investigation that we would suggest the
44 Independent Commissioner is undertaking or whether it’s a
45 process that follows after that preliminary investigation.
46 I just don’t know. But what I can say is that, whatever
47 process is contemplated by Canon 1719, it’s not impacted on
1 the operations of the Independent Commissioner or his
2 interactions with me or the Archdiocese, so far as I know.
4 Q. And certainly in the work that Mr O’Callaghan
5 undertook as Independent Commissioner there weren’t
6 separate decrees of the ordinary to initiate an
7 investigation in respect of each separate complaint as it
8 came in?
9 A. Correct. There were not.
11 Q. Or to conclude an investigation?
12 A. That’s correct.
14 Q. Going back, Mr Leder, a moment to what you were saying
15 about the ambit of confidentiality assurance and that
16 certain matters certainly would be able to be reported to
17 the Archbishop and his agents, am I to understand you to
18 say that that would be without a particular release from
19 the victim who had imparted the information?
20 A. Yes.
22 Q. Unless there had been a specific request as envisaged
23 by that subparagraph (xi) we looked at earlier?
24 A. I think that’s right, yes.
26 Q. You appreciate that there may be a difference in how
27 you and those operating the Melbourne Response conceived of
28 or understood the confidentiality and how victims
29 participating might have seen it; in other words, that they
30 might have seen it as being confidential to the
31 Commissioner, to the Independent Commissioner, the public
32 face of the scheme?
33 A. I’m sure that’s possible, but I think it’s
34 inconsistent with the literature and the Independent
35 Commissioner’s descriptions of his functions and the sorts
36 of descriptions that he gives as to his role. My belief is
37 that when people come forward to the Independent
38 Commissioner they are coming forward to have their
39 complaint investigated and ruled upon and for steps to be
40 taken in relation to the priest if that’s appropriate, and
41 that it would be, if I may say, self-evident that steps
42 could not be taken in relation to the priest without there
43 being a report of the findings to the Archbishop.
45 Q. It is the case, though, as I understand you have
46 accepted, that certain information would be kept by the
47 Independent Commissioner and not disclosed even to the
1 Vicar General or the Archbishop?
2 A. Yes.
4 Q. But necessarily certain information, such as the
5 finding and what it’s on exactly, would be imparted to the
6 Vicar General and the Archbishop?
7 A. Yes.
9 Q. And the line between those two is not a line which has
10 been clearly drawn in these documents?
11 A. Not in these documents. I would see that as a matter
12 for the Independent Commissioner to report on his findings
13 in the way that he considered appropriate.
15 Q. Well, you would appreciate, I think, that the
16 difficulty with that might be that one way of reporting
17 would be a very full report, including annexing various
18 medical reports, transcripts of interviews and so on, and
19 another way of reporting might be a much briefer way which
20 just reports the essential facts that were found to exist?
21 A. And the latter is typical, except in the case of
22 contested hearings where more detailed reasons are
23 provided, as I understand it.
25 Q. Well, possibly also in the case of Emma Foster?
26 A. Yes.
28 Q. Perhaps we will come back to that aspect. But moving
29 on now to the next component of the scheme, if we can go
30 back to tab 13, and the next component of course at
31 paragraph 3 on page 4 is the professional support services.
32 That’s what became Carelink, am I right?
33 A. That’s right.
35 Q. Can you explain for the Royal Commission, Mr Leder,
36 what the thinking was behind having the treatment,
37 counselling and support aspects separate from the
38 compensation aspect?
39 A. I’m not sure that I understand your question. In
40 terms of – do you mean that one is ongoing and one is not?
41 Is that —
43 Q. Let me rephrase it. One way of dealing with the
44 matter would just be to have compensation, and that deals
45 with everything?
46 A. Yes.
1 Q. Another way of dealing with it might be that the same
2 person or group of people deal with questions of monetary
3 compensation as well as how much other support should be
4 funded by the Archdiocese. But a different model is the
5 one which was ultimately adopted. What is the thinking
6 behind the adoption of this particular model?
7 A. I see. I think that the expertise that one would rely
8 on in order to either provide counselling or treatment or
9 make decisions about what sort of counselling and treatment
10 is appropriate is ultimately not the same sort of expertise
11 that one would rely on to try and assess compensation.
13 Q. And it’s as simple as that. Different expertise?
14 A. I think it’s different expertise, yes. I think it’s
15 also the case that there are some victims who seek support
16 for counselling and treatment but don’t seek compensation,
17 and it’s further the case, as we have heard, that victims
18 will be assisted by – can be assisted by counselling and
19 treatment through the process as well as at the end of the
20 process, and indeed can be assisted by counselling and
21 treatment if they are not otherwise going through the
22 process. So, for instance, could receive counselling and
23 have and do receive counselling and treatment administered
24 by Carelink while a criminal prosecution is under way or
25 indeed while they are undertaking or contemplating civil
28 THE CHAIR: Q. Mr Leder, it’s a return to part of the
29 discussion we had before lunch, but you constantly use the
30 word “compensation” when speaking of the money aspect of it
31 all. What do you understand to be the nature of the
32 compensation? What are you compensating for?
33 A. I think it is a recognition in monetary terms of the
34 wrong done and the harm caused, but it is not general
35 damages or special damages in the way that one would
36 receive, that a plaintiff would receive in legal
39 Q. So it is compensation which is for the purpose of
41 A. Yes.
43 Q. But not response?
44 A. Well, I don’t mean to disagree with Your Honour, but
45 I would —
47 Q. Disagree if you feel —
1 A. I would see recognition as part of the response.
3 Q. Well, it all goes back to how do you work out between
4 nought and 50, or 75 as it now is, what is appropriate. If
5 it is compensation – well, I’m not sure that “compensation”
6 is the right word as I understand what you understand to be
7 seeking to achieve?
8 A. That may be so. We use the phrase “ex gratia
9 compensation”, which I think seeks to distinguish, and
10 perhaps we could have come up with a better phrase, but it
11 seeks to make the point that this is not common law
14 Q. “Ex gratia” adds nothing to the concept of
15 compensation. It’s the use of the word “compensation” that
16 is interesting?
17 A. Yes.
19 Q. Many would say that a redress scheme doesn’t provide
20 compensation, but you have been thinking of it as
22 A. I understand Your Honour’s point and perhaps it’s not
23 the right word. I mean, perhaps “recognition” or perhaps
24 the word “redress” is more appropriate, and again perhaps
25 “redress” isn’t an appropriate word.
27 MR STEWART: Q. I think somewhere it may be referred to
28 as the “ex gratia payment”?
29 A. Yes.
31 Q. Which is perhaps the least misleading description?
32 A. Yes.
34 Q. It’s just a payment and it’s ex gratia?
35 A. Yes.
37 Q. You may or may not be aware, Mr Leder, that at least
38 in some instances in the administration of Towards Healing
39 an approach has been taken to limit counselling or other
40 support, professional support, to 10 sessions subject to
41 review and perhaps exceptional circumstances. Was it
42 always envisaged, in other words from the outset of the
43 conceptualisation of this model, that the professional
44 support under what became Carelink might be open-ended?
45 A. It was. I think the one thing that we see in this
46 document that did not unfold as we expected was that this
47 document suggests that Carelink would provide or could
1 provide treatment itself, and I see there “professional
2 support services will be available directly from these
3 staff,” and that in the event is not how things unfolded
4 and that was because we realised very quickly that for many
5 if not most victims the thought of getting counselling or
6 treatment from the Church, if I can put it that way, was
7 seen as inappropriate. While Carelink was set up to be
8 independent, the experience almost from the beginning was
9 that the better approach was to administer the provision of
10 counselling and treatment by third parties. I think the
11 other thing that became apparent very quickly was that some
12 victims who came forward already had existing – were
13 already receiving treatment or counselling and that it
14 seemed quite unwise to try and disrupt those existing
15 relationships if they were working.
17 Q. If we can look at paragraph 3.6 on the next page. It
18 raises the question once again of confidentiality. It
21 The service [that’s Carelink] will respect
22 the confidentiality of complainants, but
23 will comply with legal reporting
24 requirements. It may also disclose
25 information with the consent of the
28 Once again, perhaps you can give at least your
29 understanding of confidential to whom? Who is within that
30 circle of confidence?
31 A. I think within that circle of confidence is Carelink
32 and third party providers retained by Carelink, although
33 I think that there are express confidentiality arrangements
34 signed up to, and I think absent consent from the
35 complainant – I stand to be corrected – but I think that’s
36 the circle.
38 Q. The practice was, was it, to get the complainant’s
39 consent before reports from Carelink or in the possession
40 of Carelink were passed on to the Compensation Panel?
41 A. Yes.
43 Q. And what about passing information by Carelink to you
44 as solicitor for the Archdiocese?
45 A. There’s no consent process for that to occur, and it
46 doesn’t occur.
1 Q. So you would regard this promise of confidentiality in
2 paragraph 3.6 to stop that; in other words, Carelink
3 wouldn’t pass confidential information to you unless there
4 had been consent or release?
5 A. I think that’s right. I mean, there would be –
6 I think the other exception to that is if Carelink or the
7 staff of Carelink were seeking professional advice or legal
8 advice about a particular issue, then I can envisage in
9 that circumstance that they might provide some information.
10 But over the years the exchanges that I have with Carelink
11 are almost invariably on an anonymous basis so that I don’t
12 know who the – if they do seek some advice from me or seek
13 my opinion, I don’t know who the complainant is, unless
14 it’s a circumstance where I already know who the
15 complainant is.
17 Q. But you can see even in the example you have given the
18 potential difficulty that may arise where you are the
19 Archbishop’s and Archdiocese’s solicitor?
20 A. Yes.
22 Q. Carelink has been set up on an explicit basis
23 independently with a promise of confidentiality. If
24 Carelink is then to share confidential information with you
25 to seek legal advice as to how they should deal with a
26 particular issue, that might be seen as a breach of this
27 promise of confidentiality?
28 A. I can see that issue. I would say that what I’m
29 speaking of is very much the exception and not the norm,
30 but I can see the issue, yes.
32 Q. And you will appreciate that I am exploring these
33 matters because of their complexity and they are matters
34 that will have to be addressed in any future redress
35 scheme, if one is ultimately proposed?
36 A. Also, although I don’t think – unlike the situation
37 with the Independent Commissioner, I don’t think it’s been
38 made express, but I would understand that I have a
39 professional obligation of confidentiality to Carelink and
40 I would very clearly understand that I was not to disclose
41 that information to the Archdiocese.
43 Q. Which puts you in a difficult position in the event
44 that you are giving advice to the Archdiocese on any issue
45 where you have got independent knowledge from Carelink
46 which you can’t share with the Archdiocese?
47 A. It could. It could. I can’t think of a circumstance
1 where it has happened.
3 Q. You may be aware that one of your Sydney partners has
4 published in the Australian Law Journal on questions of
5 Chinese walls and confidentiality within big law firms?
6 A. I’m aware of the issue. I’m not aware of the article.
8 Q. The next part of the Four Part Plan is that covered in
9 paragraph 4, the Compensation Panel, just a bit further
10 down the page. The opening subparagraph 4.1 uses the
11 phraseology “ex gratia compensation”. I think we’ve
12 probably discussed those words sufficiently. In paragraph
13 4.2 it says:
15 The function of the panel is to provide
16 complainants with an alternative to the
17 pursuit of legal proceedings against the
18 Archbishop or the Archdiocese.
20 Am I right that right from inception this compensation
21 scheme was seen as an alternative to civil litigation?
22 A. Yes.
24 Q. In other words, it wasn’t ever envisaged that one
25 might get compensation under the Melbourne Response and
26 also be able to litigate?
27 A. That’s correct.
29 THE CHAIR: Q. Can I ask you about that. The real
30 question is: why? Did you consider providing that the
31 Melbourne Response may provide a sum of money on condition
32 that it be set off against any common law claim? Why was
33 it thought appropriate for someone who might have a good
34 common law claim to deny them the Melbourne Response if
35 they were to pursue a common law claim or vice versa?
36 A. I don’t think that we – I don’t think that we did
37 consider that. As best as I recall, we did not consider
38 it. What we contemplated was that victims could go through
39 the Compensation Panel process, see what the outcome was
40 without otherwise compromising their rights, and if they
41 were not – if they didn’t want to accept the offer, they
42 could then continue with or pursue legal proceedings. But
43 I don’t think we contemplated the option of both.
45 Q. You see how by saying to someone, you make it 50,000,
46 “But you can’t sue us; but you get $50,000 now”, would
47 operate as a serious disincentive to someone who might in
1 fact have a good claim because of the difficulties of the
2 common law process?
3 A. Yes, I can see that.
5 Q. Do you think on reflection that it should have been
6 framed so that if you accepted a modest sum under the
7 Melbourne Response you were denied any opportunity for a
8 common law claim?
9 A. Your Honour, I can see arguments both ways. I’m
10 aware, for instance, that the Defence Force scheme does
11 allow applicants to receive a payment from that scheme
12 without giving away their legal rights.
14 Q. What’s the argument in favour of requiring them to
15 forgo all their legal rights in return for a modest sum?
16 A. Your Honour, I think there are a number. One is
17 obviously finality which might be seen to be advantageous
18 to one party or to both.
20 Q. That’s finality for the Church?
21 A. Yes, and finality for the victim.
23 Q. How is that a benefit if they have just got the
24 option? They can choose to finalise it there themselves or
25 the option to sue. Why is it a benefit to them?
26 A. Well, it may be a benefit to some victims to feel that
27 they have finalised that aspect of their claim. I heard
28 and listened with great interest to what Mr Hersbach said
29 about that, that he went through a process and for a period
30 of time found the signing of a release to be part of his
31 healing process, I think he said, and I also heard what he
32 said subsequently. So, as I said, Your Honour, I can see
33 arguments both ways.
35 Q. Where is the other argument in favour of imposing that
36 obligation on the victim?
37 A. I think, Your Honour, my answer is that to the extent
38 that finality is a benefit, then that benefit is present.
39 Beyond that, clearly someone who has a legal claim and
40 gives it away is giving something away.
42 Q. In return for a sum which the Church would give them
44 A. Well, when the scheme was set up the Church’s position
45 was that they would not otherwise give that sum.
47 Q. I know. But once the scheme is set up, the Church is
1 saying, “Anyone who comes to us and justifies to the
2 Independent Commissioner an entitlement to a modest sum
3 will get it”?
4 A. Yes.
6 Q. But they have to forgo any common law right?
7 A. Yes.
9 Q. Can you understand why that might be seen as a scheme
10 that protects the Church —
11 A. Yes, I could understand that.
13 Q. — unfairly? Do you understand that people would see
14 that as an unfair scheme?
15 A. I don’t agree, but I can see that people say that.
17 MR STEWART: Q. You will appreciate, Mr Leder, that it
18 leaves as a possible inference that this scheme was aimed
19 at purchasing for the Church freedom from legal process at
20 a low price?
21 A. I understand that and, as I have said several times
22 already, the Church’s view and my view is that the claims
23 being settled through this process were claims that had no
24 significant prospect of success and therefore in that sense
25 that what victims give up when they sign the release is a
26 legal claim that’s unlikely to succeed. That might be seen
27 as nevertheless having some value, I can see that.
28 I absolutely understand that.
30 Q. The other point is that if it has no value or
31 corresponding disadvantage or debt to the Church, then
32 what’s the point in requiring it?
33 A. Yes, well, in a legal sense perhaps there isn’t a
34 point. I think the other thing that to my mind is
35 important is that the Church’s position until now has been
36 that this ex gratia payment does bring that aspect of
37 assistance to an end and as a lawyer it is my view that, if
38 that is the Church’s position, there is a benefit in being
39 clear about that. I think it would be undesirable for a
40 victim to accept the ex gratia payment believing that that
41 was the first in a series of payments if that’s not the
42 Church’s position, and until now it’s not the Church’s
43 position. So, to my mind I think the clarity is
46 THE CHAIR: Q. The easy way to do that is, as I said to
47 you earlier, to provide that if you do sue, it’s set off?
1 A. Yes, I agree. That’s another —
3 Q. That’s as clear as a bell?
4 A. Yes, I understand that, and I agree.
6 MR STEWART: Q. Are you aware, Mr Leder, that that’s in
7 effect, according to the evidence of Archbishop Pell in
8 relation to the Towards Healing scheme in the Archdiocese
9 of Sydney, that’s in effect what the position became; in
10 the last three or four years no releases were required and
11 there would just be a crediting if the claim was ultimately
12 successful in court?
13 A. I’m aware of that in general terms, yes.
15 Q. You referred to the evidence of Mr Hersbach and you
16 would have heard him say how signing the release was giving
17 power to the Church, giving up power to the Church which
18 was in a sense putting him back in the position of being
19 abused, which was the exercise of what he saw as the power
20 of the Church?
21 A. I did hear that, yes.
23 Q. And that’s been heard from other victims too. Just
24 reverting to the question of confidentiality, can you look
25 at tab 17. You will see this is a letter in November 1996,
26 or memorandum, rather, from you to Alex Chernov QC, who was
27 then the Chair of the Compensation Panel; is that right?
28 A. That’s right.
30 Q. And Mr Ted Exell, the business manager of the
31 Archdiocese, copied to the Independent Commissioner, and it
32 is dealing with the question of the basis for compensation.
33 If we can scroll down further, you will see that section
34 beginning “Having re-read paragraphs (f) and (g), I suggest
35 that at the outset of the process there should be a
36 ‘package’ of documents provided to the applicant that
37 include” – and before we carry on, ultimately the way it
38 worked, there was a package of documents provided to an
39 applicant after there had been a finding of abuse by the
40 Independent Commissioner; is that right?
41 A. So the application for compensation form, is that what
42 you are referring to?
44 Q. Yes?
45 A. So that includes with it the various consents and so
46 on. So I would agree that’s a package. I think that
47 document is generally available, but it’s a precondition to
1 seeking compensation that you have a finding from the
2 Independent Commissioner. So ordinarily it is the
3 Independent Commissioner who would provide that form to the
6 Q. And one release is to enable the Independent
7 Commissioner to report to the panel?
8 A. Yes.
10 Q. Another one is to enable Carelink to report to the
12 A. That’s right.
14 Q. You will see the last dot point on the page. You say
15 also as a question almost, “Presumably an authority to
16 disclose the same information to Corrs.” Now, do
17 I understand it correctly that that wasn’t followed
19 A. That’s right. This memorandum is referring to a
20 memorandum from Mr Chernov to me setting out his thoughts
21 and at that time the thought was that the compensation –
22 I think it was Mr Chernov’s proposal that the Compensation
23 Panel would have a person as registrar or counsel
24 assisting, and ultimately that didn’t proceed. So I think
25 that we were still working through how the process would
26 work and who the participants in it would be.
28 Q. Going back to tab 13, paragraph 4.3, you will see
29 there it provides:
31 The establishment of the panel and the
32 payment or offer to pay compensation is not
33 an admission of legal liability. The
34 Archbishop, the Archdiocese and the Church
35 do not accept that they have any legal
36 obligation to make payments to
39 Of course, the truth is that would depend on the
40 circumstances. There may be, even on that view of the law,
41 rare cases where the Archbishop and so on would accept a
42 legal liability?
43 A. Yes.
45 Q. And the Archbishop also recognises, reading on, that,
46 “There is strong opposition from some quarters to the
47 making of any compensation payments.” This is the same
1 view we considered earlier, the one that you said not much
2 or any credence was given to; is that right?
3 A. Yes, it is. I think it reflects how old this document
6 Q. It seems to be offered here as a justification for the
7 compromise that was adopted in the scheme?
8 A. In part, yes.
10 Q. Well, it can’t be consistent to not give any credence
11 to that view but at the same time for it to be a
12 justification for the compromise?
13 A. Well, I think the last sentence seeks to draw all of
14 that together and say that there are arguments going in
15 different directions and that the process strives to
16 achieve what it strives to achieve.
18 Q. But from that are we to understand that one of the
19 arguments that was weighed in the balance with others was
20 the opposition to making any payments?
21 A. Yes.
23 Q. But I understood your evidence before lunch, and I may
24 be wrong, to have been that that argument wasn’t given any
26 A. Perhaps rather than strong opposition – well, yes,
27 I hear what you say. My memory is that, while there was
28 opposition, that Archbishop Pell didn’t think much of it.
29 I don’t really – I mean, I see that that’s still in there
30 as part of the document and I really can’t say any more
31 than my memory is that Archbishop Pell did not give much
32 oxygen to that view.
34 Q. I want to address this question of the basis upon
35 which it was thought that the Archbishop, the Archdiocese
36 and the Church has no legal obligation, and perhaps that’s
37 captured in your own writing most conveniently at tab 33.
38 So you will see this is now some nearly five years later?
39 A. Yes.
41 Q. This is a memorandum from you to Ms Susan Crennan QC,
42 as she then was, on her appointment as chair of the
43 Compensation Panel; is that right?
44 A. Yes.
46 Q. And you set out various matters for her by way of
47 background and so on, and on page 3 of that letter, halfway
1 down it says:
3 It may be that in the course of your
4 contact with victims you will be asked
5 questions about some of the legal issues
6 arising from claims against the Church.
7 Fundamental to the initiatives that have
8 been in place since 1996 are the following
11 And then you set them out. Firstly, that:
13 The Catholic Church is not a legal entity
14 and accordingly it cannot be sued and
15 served with legal proceedings; [secondly]
16 similarly, the Archdiocese of Melbourne is
17 not a legal entity; [thirdly] the Office of
18 the Archbishop of Melbourne is not a legal
19 person, and the Archbishop is not a
20 corporation sole.
22 Just pausing there, can you explain in lay terms what the
23 effect of that is, that the Archbishop of Melbourne is not
24 a “corporation sole”?
25 A. Yes. That means that if a particular person as
26 Archbishops, let’s say Archbishop Little, had some personal
27 liability, that that liability does not transfer to his
28 successor, in this case Archbishop Pell.
30 Q. So if there was a case where the abuse by a priest
31 could in legal terms be visited upon a previous Archbishop
32 once he’s left office, the only opportunity would be to
33 pursue that Archbishop if he remained alive or his estate
34 not yet devolved, but the next Archbishop would not be
35 liable for that?
36 A. Yes, that is that legal proposition.
38 THE CHAIR: Mr Stewart, the document you may have been
39 looking for is behind tab 9A, I think, in my documents.
40 There’s a letter there that explains this issue, but in the
41 words of Mr O’Callaghan, I think. But it is actually not a
42 bad attempt to put into lay words, if you want to use it.
44 MR STEWART: Yes, I’m indebted to Your Honour. So that’s
45 the document which is referred to, if we can go over the
46 page from where we were, so it is tab 33, to the fourth
47 page towards the end, the next page. Further down it says:
2 Enclosed for your information is a copy of
3 my letter to Archbishop Pell of 28 October
4 1996 concerning “legal technicalities”,
5 which deals with some of these issues.
7 And also other information is enclosed. That is then the
8 letter that His Honour has referred to at tab 9A?
9 A. Yes.
11 Q. I had taken you to your abbreviated version of it set
12 out in the letter, but if we can go to tab 9A. So the
13 corporation sole aspect is explained there in that
14 paragraph on the screen?
15 A. Yes, that’s correct.
17 Q. And then over the page to paragraph (b), a second way
18 of putting a claim against the Church has been identified?
19 A. Yes.
21 Q. Or against the Archbishop, and that is that he is
22 responsible for the control and management of priests, and
23 then you set out a response in relation to that in (c):
25 Some plaintiffs have alleged that the
26 Church is a voluntary association and that
27 the Archbishop can be sued as representing
28 its hierarchy and members. We consider
29 that this allegation is wrong at law.
30 Sporting clubs can be voluntary
31 associations, but the Church is not.
33 A. Yes.
35 Q. And in (d):
37 The final allegation that has been put is
38 to the effect that the Archbishop is liable
39 as the employer of priests. Once again, we
40 take the view that this is simply wrong.
41 The relationship between a priest and his
42 Bishop is of course regulated by Canon Law,
43 it is not an employment situation.
45 THE CHAIR: Q. Leaving aside the issue of vicarious
46 liability, you are aware of what’s been said on behalf of
47 the Bishops conference now about what the Church should do?
1 A. Yes.
3 Q. And you are aware of what the Victorian parliamentary
4 inquiry recommended be done?
5 A. I am.
7 Q. That is to create a vehicle, however you do it,
8 whereby the Church can be sued?
9 A. Yes.
11 Q. And people can recover against the Church?
12 A. Yes, that’s correct.
14 Q. Now, I know you were carrying out your duty as the
15 lawyer in advising as you did, but was there a discussion
16 amongst those who you were advising that in fact this
17 wasn’t right; that something should be done to provide a
18 vehicle that could be sued?
19 A. There was certainly – I think the entire context of
20 the discussions with Archbishop Pell and others from the
21 end of July 1996 through to the point of time of this
22 letter in October was that in the absence of legal
23 liability what ought be done. I suspect that there was
24 probably also some discussion as to whether there were
25 defences available that ought not be taken, and I think
26 that’s why this letter is titled “Legal technicalities” in
27 quotation marks. As I recall, there had been discussion in
28 the media at that time about whether the Church would or
29 would not take so-called legal technicalities and the
30 proposition being advanced in this letter and in other
31 discussions with the Archbishop was that these were
32 substantive legal defences and not technicalities.
34 Q. They are substantial legal defences, but it’s fairly
35 clear from what the Church through its Bishops is now
36 saying and the Victorian parliamentary inquiry is saying is
37 that it’s not the right way to go?
38 A. Yes, I agree.
40 Q. Was there a discussion back then which suggested this
41 wasn’t the right way to go?
42 A. As best as I recall, the discussion was that, “The law
43 is the law and these are the defences, so what ought be
44 done?” And the answer was to establish the Melbourne
47 Q. So no-one reached the view that it was the wrong thing
1 to do to take these defences and not provide a capacity to
3 A. That’s correct. No-one reached a view that it was the
4 wrong thing to do. If that view had been reached, then no
5 doubt an alternate course of action would have been taken
6 by the Archbishop.
8 Q. Has it come as a surprise to you that the Church’s
9 position through the Bishops at least has now changed?
10 A. No.
12 Q. Why not?
13 A. Because I think almost 20 years down the track
14 everyone’s understanding has increased a lot. There was
15 some discussion yesterday with Mr O’Callaghan as to why his
16 appointment was only for a period of six months. My
17 recollection is that that was reflective of the
18 significance of the problem as it was understood and the
19 issues as it was understood to be at that time. Clearly it
20 was a completely inadequate understanding.
22 Q. What understanding has been achieved that’s caused you
23 to see that it’s proper or appropriate for the Church to
24 change its position and provide a vehicle to be sued? What
25 have you come to learn that’s caused you to see that as the
26 appropriate position?
27 A. I think Your Honour is asking me to summarise the last
28 18 years of my experience, which I would struggle to do.
29 I don’t know how to answer that in a simple way.
31 Q. I can understand you saying more victims have come
32 forward and the problem is larger than people may have
33 realised at the time. But why does that cause a change –
34 is it proper to change the Church’s capacity to be sued?
35 A. Your Honour, relative factors would include not only
36 the number of victims but a much greater understanding of
37 the long-term effects of abuse, I think an increased
38 understanding of the failures of the Church to deal
39 properly with complaints earlier, an increased
40 understanding that there were complaints made that were not
41 properly acted on. I think all of these matters and no
42 doubt others all contribute to the increased level of
43 responsibility that the Church now proposes to take.
45 MR STEWART: Q. Is it not perhaps, Mr Leder, that the
46 political environment is completely different; that victims
47 and their perspective is – I withdraw that. That victims
1 are far more outspoken and a victim’s perspective is given
2 far more airing, there is a Royal Commission and so on,
3 that that’s the context in which the change now comes
4 rather than that there is any greater understanding of
5 child sexual abuse in the Church?
6 A. I think it’s both. I was hesitating to answer
7 Your Honour’s question because I knew I would do so
8 inadequately. I absolutely agree that the factors to which
9 you have referred are extremely relevant as well.
11 Q. Perhaps, put briefly, people won’t stand for it any
13 A. That may be so, yes, and I can understand that.
15 Q. Can you think of any other organisation, institution
16 or organisation, that enjoys that sort of privileged
17 position where employees are not employees, where there is
18 no continuation of legal title over time and so on?
19 A. There are certainly other religious institutions that
20 would fall within the same category. I’m now trying to
21 think back as to what the law around unincorporated and
22 voluntary associations was 20 years ago. That’s changed as
23 well. I think one of the factors is that the Church as an
24 institution existed before the Australian legal system came
25 into being and these things have unfolded as they have
26 unfolded and to the extent that the time for change and
27 reform has come, I’m absolutely supportive of that.
29 Q. Would you agree that the position that the Church
30 enjoys in the law as articulated by you in these documents
31 we have looked at is a peculiarly privileged one?
32 A. I don’t know that I agree with your words. I agree
33 that it’s different, for instance, from a corporation.
35 Q. You would agree, I understand, from what you have
36 said, that it has become an anachronistic one?
37 A. Yes, I think so.
39 Q. Perhaps we can go to tab 33, which was your letter to
40 Ms Susan Crennan QC, and on that same page but if we can
41 scroll up to the first paragraph. You can read the first
42 couple of lines to yourself, and then about the sixth line
43 it says:
45 Although the Archdiocese and the wider
46 Church have come under some criticism for
47 relying on so-called legal technicalities,
1 the position of the Archdiocese is that if
2 an alleged victim elects to bring legal
3 proceedings then having chosen to play in
4 the legal arena, the plaintiff must play to
5 the legal rules, and expect to be faced
6 with all of the defences and legal
7 obstacles that are available to the
10 That really encapsulates what you were trying to explain
11 earlier about the approach that was taken at that time; is
12 that right?
13 A. Yes, yes.
15 Q. If we can go back to tab 13, to paragraph 4.6 where we
16 were earlier, I think, or perhaps over the page from where
17 we were. 4.5 you will see sets the cap as it then was at
18 $50,000, and then 4.6 sets out how:
20 Complainants remain free to use the normal
21 court process if they do not wish to avail
22 themselves of compensation … In that
23 event they should expect that the
24 proceedings will continue to be strenuously
27 I’m just interested to understand whether you understand
28 there to be a difference between saying a case will be
29 defended and saying it will be strenuously defended?
30 A. I think there is a difference, yes.
32 Q. There is a difference?
33 A. Yes, I think so, yes.
35 Q. And what would that difference be?
36 A. I think to say that a case is strenuously defended
37 reflects that every point that is open to a defendant to
38 take will be taken. I think that’s what that means.
40 THE CHAIR: Q. It will be fought out in the tough way
41 that litigation is sometimes fought out between commercial
42 opponents; is that right?
43 A. Yes, I think that’s what that language means.
45 Q. And that’s going to frighten the average person, isn’t
47 A. Yes.
2 Q. Was it intended to do that?
3 A. Your Honour, I can hear the response before I give my
4 answer, but nevertheless my answer is that, no, it was not
5 and that it was a reference at the time to – and I think
6 I make some reference to this in my statement – a reference
7 at the time to a particular law firm that was acting in a
8 way that I perceived and that others perceived to not be in
9 the interests of their clients, and I might say that my
10 opinion is that that view was ultimately vindicated by the
11 disciplinary proceedings taken against that lawyer for
12 overcharging his clients in other matters, and I do want to
13 make it clear that in making this reference I in no way
14 refer to any plaintiff lawyer or any lawyer acting for a
15 victim in relation to matters in recent years. I make no
16 criticism of them at all.
18 Q. So this was put in to aim at one lawyer?
19 A. Well, yes, he had a large number of clients at that
20 time. That’s my best recollection of why that language was
21 used at that time.
23 Q. And continued to be used for quite some time after
25 A. It continued to be used, Your Honour, until the
26 Fosters made a complaint about it, and I think their
27 complaint was well made and I think the language was
30 MR STEWART: Q. The point of course to this part of the
31 four point plan is to discourage civil suits?
32 A. I understand why you say that. I think that at the
33 time, at the time the perspective was as that paragraph
34 says, that complainants are free to use the normal court
35 processes, but if they are, the case will be defended. But
36 there is now an alternative which was not there before. So
37 why I’m – why I don’t really agree with your suggestion
38 that it was intended to discourage plaintiffs was that
39 I think what it was seeking to say was, “If you are suing,
40 then there will be no change to the position that the
41 Church has taken through the 1990s,” which was the position
42 of strenuously defending cases, “but there is an
43 alternative which you can go through, see whether you are
44 happy with the outcome and if you are happy with the
45 outcome, settle your case, and if you are not happy,” then
46 this aspect of the Melbourne Response didn’t change the
2 Q. I suggest it certainly leaves the impression the use
3 of the phraseology “strenuously defend”, perhaps taken
4 together with the sentence we looked at earlier in
5 paragraph 4.3, which stated that “the Archbishop, the
6 Archdiocese and the Church do not accept that they have any
7 legal obligations to make payments to complainants” was to
8 discourage any civil suits being brought?
9 A. I don’t want to be understood as seeking to defend
10 that language as being appropriate now. I’m seeking to
11 explain why it was used back when it was.
13 Q. In your statement, paragraph 91 on page 23 of your
14 statement, you can read the first part of that to yourself
15 as we can to ourselves, Mr Leder. Then you will see in
16 about the eighth line it says:
18 I was seeking to make the point that, in
19 considering whether to accept the offer or
20 to pursue litigation, it should be
21 understood that if litigation was pursued
22 it would be defended on the basis that the
23 defence was legally very strong and that
24 accepting the offer being made might be
25 considered to be a better outcome than not
26 accepting the offer and running, and
27 losing, litigation.
29 Was that in the context specifically of the letter to the
31 A. That’s what I’m referring to there, yes.
33 Q. So that explanation wouldn’t be one you would apply to
34 the document which is generic and where a particular case
35 might actually be very strong, others may not?
36 A. I agree that that language doesn’t apply to a case
37 that was very strong. Back in 1996 I had not yet
38 encountered any cases that were strong, and the cases to
39 which Mr O’Callaghan referred yesterday in relation to
40 Father Baker were at that time not cases of which I was
41 aware. My experience, and I think I said before lunch that
42 I had had experience with some 30 cases, and my view was
43 that all of those cases were cases that were unlikely to
46 Q. Returning to tab 13, if we could look now on page 7 at
47 paragraph 4.9:
2 The panel will determine guidelines
3 appropriate to the method in which it is to
6 That ultimately was left essentially to the Compensation
7 Panel, those guidelines. That wasn’t done in advance?
8 A. That’s correct, yes.
10 Q. And 4.10:
12 To be eligible for an ex gratia
13 compensation payment, the complainant will
14 need to establish the factual basis of the
15 claim. The panel will consult and liaise
16 with the Commissioner in this regard.
18 A. Yes.
20 Q. In any claim, any common law claim, there will be
21 elements that will have to be established, obviously
22 liability, causation and then quantum being the sequelae of
23 the acts as a consequence of the causation. Here we have
24 the Commissioner, Independent Commissioner, essentially
25 deciding, “Yes, the abuse happened; a payment should be
27 A. Yes.
29 Q. Am I right? And then the panel deciding how much
30 within its limits to pay; is that right?
31 A. Yes.
33 Q. Was particular consideration given in the
34 conceptualisation of the scheme to questions of causation?
35 A. The concept was that that was irrelevant.
37 Q. That was one of the compromises in a sense —
38 A. Yes, one of the compromises, yes.
40 Q. So it wouldn’t be necessary to establish causation,
41 certainly not in a legal sense?
42 A. That’s so.
44 Q. At tab 21, as I understand it, are the Compensation
45 Panel guidelines that were developed and which you then
46 circulated to the Compensation Panel members; is that
1 A. Yes, I think so.
3 Q. And those guidelines don’t deal with the difficult
4 question that His Honour has put of how to decide whether
5 in a particular instance what amount should be paid between
6 zero and 50?
7 A. I’m not sure whether it is there in that document or
8 not. I know that Mr Chernov did write something about
11 THE CHAIR: Q. Do we have that? I’m not conscious that
12 I have seen it, but we may have it.
13 A. I can certainly locate that document overnight, but
14 I believe that – it’s certainly not a complex formula or
15 anything like that. On the contrary, it was a statement of
16 several sentences along the lines of the panel seeking to
17 recognise the physical, mental and spiritual suffering and
18 formulate an ex gratia payment in that amount.
20 Q. We would like to see the document because, as you
21 would have gathered, we are struggling to work out how it
22 all pans out?
23 A. Yes.
25 MR STEWART: Q. The way in which matters worked is that
26 the compensation file, after the panel had made its
27 finding, would get sent to you – I withdraw that. Let’s
28 have a look at your statement at paragraph 58.
29 A. Can I say, sir, that I think the document to which I’m
30 referring may be one of the documents referred to at
31 paragraph 43 of my statement.
33 Q. Let’s take a look at that, 43?
34 A. But I may be mistaken, but I think that’s where
35 I refer to that.
37 Q. By that are you referring to the two that are in the
38 bundle, in other words the first two tabs, 20 and 21, or
39 are you referring to the others that are not in the bundle?
40 A. I can’t tell from looking at this which of the
41 documents referred to are the ones behind the tabs and
42 which are not.
44 Q. Let’s go to tab 20. At the foot of that page, is this
45 what you were thinking of? “In general terms”, so this is
46 a memorandum to members of the Compensation Panel by
47 Mr Chernov?
1 A. Yes, that is.
3 Q. It says:
5 In general terms, the approach that the
6 panel will take in dealing with assessments
7 will not be one whereby it seeks to
8 compensate the applicant for economic loss,
9 pain and suffering as may be done in
10 workers compensation or personal injury
11 contexts. Rather, the panel is to decide
12 the appropriate recognition of the
13 physical, mental and spiritual suffering
14 experienced as a result of the relevant
15 abuse. This particular statement is not
16 intended to oversimplify the problem of how
17 one determines such an ex gratia
20 Is that what you were thinking of?
21 A. Yes, it was, and in particular, Your Honour, the last
24 THE CHAIR: Q. So in conventional terms is it pain and
26 A. It is pain and suffering, was that, Your Honour?
28 Q. Is that what it is?
29 A. Your Honour, I have always understood that what the
30 panel seeks to do is to in part have regard to the effects
31 of the abuse and in part to have regard to the seriousness
32 of the abuse and to consciously disregard the approach that
33 a court would take in assessing general damages of looking
34 only at the effect and not the seriousness and seek to –
35 I’m probably not explaining myself very well – but to seek
36 to give a recognition of the seriousness of the abuse and
37 also have regard to the effects and seek to combine all of
40 Q. So it’s serious abuse with no effect, if you can
41 assume such a proposition, wouldn’t achieve a maximum sum?
42 A. I’d suggest that serious abuse with no effect wouldn’t
43 achieve a common law outcome —
45 Q. No —
46 A. And that the intention is that it would achieve an
47 amount. Whether or not it would achieve the maximum
1 amount, I don’t suggest that the approach is that linear,
2 but that I suppose – perhaps the best analogy I can give in
3 legal terms is to say it’s a combination of general
4 compensatory type damages for pain and suffering with a
5 recognition of exemplary or aggravated damages as well.
6 So, having regard to both factors, not necessarily to the
7 same extent. That’s my understanding and my recollection
8 based on discussions I have had with Mr Chernov and the
9 general discussions I have had with chairs of the panel
10 from time to time.
12 MR STEWART: Q. If we could go to paragraph 58 of your
13 statement on page 15. This is what I was referring to
14 earlier where you say:
16 Several weeks before the panel hearing is
17 scheduled —
19 This is in relation to any particular claim, I take it?
20 A. Yes.
23 Mr Curtain’s secretary forwards the
24 relevant compensation file to me and
25 I arrange for it to be copied and
26 distributed to other members of the panel,
27 and for Mr Curtain’s file to be returned to
28 him. In a typical case it is only at this
29 point that I become aware of the victim’s
30 complaint, the Commissioner’s finding and
31 the application for compensation.
33 Now, I would take it that that compensation file that has
34 been referred to would include in the usual course at least
35 the following: the Independent Commissioner’s report?
36 A. Yes.
38 Q. And any report that there may be from Carelink to the
39 Compensation Panel?
40 A. Yes.
42 Q. And any associated medical and psychological reports
43 and assessments?
44 A. Yes.
46 Q. So those would come to you?
47 A. Yes.
2 Q. I take it not in a way that you wouldn’t see them; in
3 other words, they would come to you and you would have
4 access to them?
5 A. I have access to them. I generally don’t – I would
6 have to say I generally don’t look at them.
8 Q. But if there was cause for you to do so, you would,
9 and you would be able to?
10 A. I would be able to, yes.
12 Q. To some degree this may go back to matters we covered
13 earlier, and if you find yourself repeating what you have
14 said before, I take responsibility for that. Can you
15 explain how you understand it that that process whereby you
16 receive all of that information and those reports does not
17 breach the Independent Commissioner’s and the Compensation
18 Panel’s undertakings of confidentiality to the victim?
19 A. I don’t believe that it breaches the Independent
20 Commissioner’s undertaking because the Commissioner’s
21 finding and report is, as I sought to explain earlier, is
22 intended in part for the Archbishop, and I believe that in
23 my capacity as solicitor for the Archbishop I’m within that
26 Q. I understand that. And then in relation to any
27 reports from Carelink itself or independent medical,
28 psychological reports and assessments?
29 A. Yes, well, I consider that those documents are
30 disclosed to me on both a confidential and a without
31 prejudice basis.
33 Q. The standard confidentiality release for Carelink has
34 the applicant for compensation releasing Carelink from its
35 obligation of confidentiality in order to be able to have
36 what’s in the hands of Carelink forwarded to the
37 Compensation Panel, but it doesn’t, as I understand it,
38 include being able to forward that material to the
39 Archdiocese, Archbishop or their lawyers?
40 A. Well, it’s not forwarded to the Archbishop. It’s
41 forwarded – I understand the point that you are asking me
42 about, and it’s forwarded to me in my capacity, I believe,
43 as the instructing solicitor for the chair of the panel.
44 I do absolutely recognise the confidentiality of the
45 documents and while I concede that they are available for
46 me to have regard to where I’m minded to, what I say to
47 you, Your Honour, is that I don’t.
2 THE CHAIR: Q. So it’s a Chinese walls inside your head
3 issue, isn’t it?
4 A. No, Your Honour.
6 Q. That’s not said in any way critically, but that’s the
7 problem, isn’t it?
8 A. I understand the problem, yes.
10 MR STEWART: Q. Because the problem is when you say you
11 receive them as the instructing solicitor of the chair of
12 the Compensation Panel, the question is instructing
13 solicitor for whom, and that must be for the Archbishop or
14 the Archdiocese?
15 A. Yes, well, it’s the Archbishop who appoints the chair
16 and the other members of the panel, and akin to the
17 Independent Commissioner their mandate is to undertake an
18 independent assessment.
20 THE CHAIR: Q. Do you think it might be better if you
21 weren’t in that loop?
22 A. Yes, I do, Your Honour.
24 Q. But you were confined to advising – if that’s what he
25 chose – the Archbishop. As far as the process of
26 Commissioner and determinations concerned, you were nowhere
27 near him.
28 A. Your Honour, in the course of reflecting on these
29 matters to prepare for the Royal Commission, yes, I have
30 formed that view.
32 MR STEWART: Q. Mr Leder, an issue that arose early in
33 the process and perhaps because it was raised explicitly by
34 the Fosters, was the one of Medicare payments. Can you
35 just explain what was the issue?
36 A. The sorts of treatment and counselling that Carelink
37 funds could be thought of as falling into two
38 categories: one, psychological and other treatment which at
39 that time did not attract any form of Medicare rebate,
40 although I think the position has slightly changed in some
41 circumstances since; and, two, treatment from medical
42 practitioners which was covered by Medicare. In relation
43 to the latter, the issue was whether Carelink was intended
44 to fund the full amount of the payment or only the gap
45 between the Medicare rebate and the actual cost. That was
46 the issue.
1 Q. And a perspective was articulated that this was by
2 Carelink seeking to have a situation where it only funded
3 the gap; it was in effect the Church burdening the taxpayer
4 with the obligation to pay as a consequence of the abuse by
6 A. Yes, that’s the argument, yes.
8 Q. And how was the issue resolved?
9 A. The issue was resolved by – well, the issue was
10 resolved by seeking, in effect, a ruling from the Health
11 Insurance Commission as to whether it was permissible in
12 the context of the Carelink structure to claim only the
13 gap, and that was ultimately the advice that they provided.
15 Q. We have covered briefly questions of deeds of release,
16 but I would like to take you to in particular what
17 I understand to be the current version at tab 61. If we
18 can scroll down a bit. Would this be the current version
19 of the deed of release?
20 A. I would need to see a little more of it. Looking
21 there at recital F, that suggests to me that that is the
22 current version. Without having checked the rest of the
23 document, I think that’s the current version.
25 Q. Yes, that’s what I wanted to ask you about. So it
26 records there that, “On 4 April 2014 the Archbishop” –
27 that’s Archbishop Hart, I take it?
28 A. Yes.
31 … announced the establishment of a
32 consultation process to consider whether
33 the current cap under the Melbourne
34 Response should be increased or removed,
35 and said that any changes arising from that
36 consultation process would be retrospective
37 to the announcement date. The Royal
38 Commission … is also examining redress
41 Then in brackets is the definition of “Possible Reforms”.
42 Then in G it is recorded:
44 Nothing in this document prevents the
45 applicant from seeking further redress in
46 relation to the abuse or any rights the
47 applicant may have as a result of changes
1 arising from the possible reforms.
3 Can you explain how these changes to the release arose and
4 what their effect is or intended to be?
5 A. The changes arose because of the developments – the
6 matters referred to in paragraph F, and in particular the
7 announcement of the Archbishop, and discussions between me
8 and the Archdiocese that in circumstances where the
9 Archbishop has said there’s going to be a review process,
10 and that might lead to a change, and that change would be
11 retrospective, it was appropriate to document that and to
12 make it clear that a victim who wishes to accept
13 compensation in the meantime based on the current cap of
14 75,000 should have clarity that if as a result of the
15 change, so if the cap increases or if the cap is removed or
16 if as a result of the consultation process there is some
17 other change that they would be no worse off as a result of
18 having accepted the offer. So that’s what is intended by
21 Q. So in part it would be to try to ensure that the whole
22 process wasn’t just brought to a halt pending the
23 resolution with regard to what you referred to as possible
25 A. Absolutely.
27 Q. And —
28 A. And, in addition, to put beyond doubt if the outcome
29 of this Royal Commission is some change that impacts on
30 existing deeds then, while it might not be necessary to
31 state that, to make it express in the document that if
32 there are changes to past settlements as a result of this
33 Royal Commission that this deed would not in any way seek
34 to stand in the way of those changes.
36 Q. And, to your knowledge, in the period since April of
37 this year have there been acceptances of offers of
38 compensation and deeds of release in this form signed?
39 A. Yes.
41 Q. Do you know how many?
42 A. I don’t. I would guess in the order of a dozen.
44 Q. Did the Archbishop or the Archdiocese in the process
45 of the Melbourne Response ever require confidentiality or
46 silence with respect to the abuse itself?
47 A. No.
2 Q. Or to the fact of a settlement having been reached?
3 A. In settlements through the Melbourne Response, no.
5 Q. By qualifying your answer in that way you suggest that
6 in some other settlements there have been such requirements
7 of confidentiality?
8 A. Not as to the fact of the abuse, to my knowledge, but
9 as to the settlement, yes, and I think Mr and Mrs Foster
10 would be aware that the settlements with their family are
11 an example of that.
13 Q. So within the Melbourne Response is it the case that
14 the only confidentiality that was required was what we
15 might term without prejudice confidentiality?
16 A. Yes.
18 Q. In other words, if an offer of an ex gratia payment
19 was not accepted, the fact of the offer having been made
20 would be kept confidential in any future legal proceedings?
21 A. Yes.
23 Q. So those answers you have given me about no
24 confidentiality with respect to the abuse being required,
25 that’s in the context of the deeds of release; is that
27 A. Yes.
29 Q. Can we have a look at tab 271, at page 3. You will
30 see that this is Mr [AFA]’s application for compensation
31 form, and at the foot of the page you can see it’s dated as
32 recently as 28 February 2011. It has various undertakings
33 and releases in relation to confidentiality, but
34 particularly if we can look at paragraph (d). You may need
35 to see above that. If we can see the opening part of the
36 paragraph. So [AFA] says he:
38 … hereby apply for ex gratia compensation
39 in respects of sexual abuse committed [and
40 so on] on the following bases…
42 And then in (d):
44 Neither I nor any person acting on my
45 behalf [and then we can leave out the rest;
46 the members of the Panel, Archbishop
47 et cetera] will (save as required by law)
1 disclose to any person, rely or seek to
2 rely in any arbitral or judicial proceeding
3 (whether or not such proceeding relates to
4 the subject matter of this application) on
5 any communication, statement or
6 information, whether oral or documentary,
7 made or provided in the course of or in
8 relation to the Panel’s deliberations.
10 A. Yes.
12 Q. So that’s quite a broad undertaking that an applicant
13 for compensation undertakes with regard to communications,
14 statements or information in whatever form either made or
15 provided in the course of or in relation to the panel’s
17 A. Yes.
19 Q. So that, as I’m reading it, would cover a medical
20 report, for example, or assessment that an applicant for
21 compensation might have procured from their own medical
22 professional and that that was provided by the applicant in
23 the course of or in relation to the panel’s deliberations,
24 but the applicant would be required not thereafter to be
25 able to use it or rely on it or disclose it to any person?
26 A. I’m sorry, could you give me that question again?
28 Q. Yes, it was long. As I read that, that would have the
29 result that an applicant for compensation who provided to
30 the panel a report of his or her own medical practitioner
31 in support of the claim and was thereby used in the course
32 of or in relation to the panel’s deliberations would not be
33 able to disclosed by the applicant to any person or relied
34 on or be sought to be relied on in any arbitral or judicial
36 A. I now see the – I see what you are putting to me.
38 Q. I can’t imagine that was intended?
39 A. No, that’s absolutely not the intent of that
42 Q. It may have to be revisited?
43 A. Yes, I agree.
45 THE CHAIR: Q. While we are looking at this document,
46 can I ask you a couple of other things. Subparagraph (b):
1 The Archbishop will offer to me such an
2 amount as may be recommended to him by the
3 Panel, provided I execute appropriate
4 releases and discontinue any relevant legal
7 A. The offer obviously precedes the signing of the
10 Q. Well, the way that’s worded, you waive your rights
11 when you make the application?
12 A. Yes, I think the reference to “offer” to me is to be
13 read as “pay”.
15 Q. Maybe that needs attention to?
16 A. Yes, I agree.
18 Q. It’s also a little vague; “provided I execute
19 appropriate releases”. The person is not told what they
21 A. At that point they are not, no.
23 Q. Well, this is the document they are asked to sign when
24 they are making an application?
25 A. I think elsewhere, though, there is an explanation
26 that the release is a release of any legal claim with a
27 carve-out for entitlements through Carelink.
29 Q. Now, a person who approaches the panel would be
30 entitled to procedural fairness?
31 A. Yes.
33 Q. Does (g) seek to take that away in the sense that you
34 can’t have it reviewed?
35 A. Sorry, can I see (g), please?
37 Q. Sorry, “I irrevocably waive any rights that … I may
38 have had to seek judicial review of any act or omission”.
39 If you are not given procedural fairness, is (g) seeking to
40 take away your capacity to have it reviewed?
41 A. I can see that argument, Your Honour. It’s never
42 been —
44 Q. Hopefully it’s never arisen.
45 A. It’s never arisen.
47 Q. But maybe you need to look at that too?
1 A. Certainly, Your Honour.
3 THE CHAIR: Yes, Mr Stewart, do you have anything more
6 MR STEWART: Nothing that can’t wait until tomorrow,
7 Your Honour.
9 THE CHAIR: All right. I think we might adjourn there and
10 resume tomorrow morning. Tomorrow we will adjourn at 3.30
11 or thereabouts so that arrangements can be made to connect
12 to Rome and so on. Then, depending upon where we get to,
13 we might take a short break in proceedings at about 5.30 to
14 allow everyone a little bit of respite before we finish the
15 evidence of Cardinal Pell. We will play that a little bit
16 by ear, but that’s the general intention for tomorrow. We
17 will adjourn until 10.
19 <THE WITNESS WITHDREW
21 AT 4.00PM THE COMMISSION WAS ADJOURNED UNTIL THURSDAY,