Cardinal George Pell testimony at Australian Royal Commission – Day three (Transcript)

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 Day One:    Click here to access  Cardinal George Pell testimony at Australian Royal Commission – Day one (Transcript – 24 March 2014)

Day Two:  Click here to access Cardinal Pell testimony Day two (Transcript 26 March 2014)

Click her to access Cardinal George Pell statement for the Australian Commission of Inquiry 

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ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE

Public Hearing – Case Study 8 (Day 63B)

Level 17, GovernorMacquarieTower

Farrer Place, Sydney

 

On Thursday, 27 March 2014 at 2pm

 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       <GEORGE PELL, on former oath:                [2pm]

2

3       MS FURNESS:  Your Honour, Mr Stewart has some documents he

4       wishes to tender.

5

6       MR STEWART:  Thank you, your Honour, Commissioners. There

7       are a number of documents to tender. They have been

8       distributed, and for your Honour and Commissioners they

9       should be in a red folder like this and made available to

10       you. If I could just explain what they are and tender them

11       one by one.

12

13       THE CHAIR:  Do you want them marked separately or just

14       marked as one document?

15

16       MR STEWART:  I am at your Honour’s convenience.

17

18       THE CHAIR:  What’s the sensible thing? You know what they

19       are. I don’t.

20

21       MR STEWART:  Separately.

22

23       THE CHAIR:  All right.

24

25       MR STEWART:  First up, at tab 1, is the financial

26       schedules that Mr Daniel Casey was asked to produce, so

27       those are in respect of the years 2002, 2003, 2008, 2009,

28       2010, 2011 and 2012. I tender those.

29

30       THE CHAIR:  Yes, they will become exhibit 8-24.

31

32       EXHIBIT #8-24 FINANCIAL SCHEDULES PRODUCED BY

33       MR DANIEL CASEY FOR THE YEARS 2002, 2003, 2008, 2009, 2010,

34       2011 AND 2012

35

36       MR STEWART:  Then next is, behind tab 2, an extract from

37       a book “The Code of Canon Law (Annotated) 1993”, pages 350

38       to 361.

39

40       THE CHAIR:  What is the specific relevance of that?

41

42       MR STEWART:  We have been asked to tender this by my

43       learned friend Mr Gray.

44

45       THE CHAIR:  Mr Gray, is there a particular portion that is

46       relevant?

47

 

1       MR GRAY:  Yes, your Honour. It’s principally Canon 479.

2

3       THE CHAIR:  479. That’s describing the role of the

4       vicar general.

5

6       MR GRAY:  Yes.

7

8       THE CHAIR:  Yes, very well. That will become

9       exhibit 8-25.

10

11       EXHIBIT #8-25 EXTRACT FROM A BOOK “THE CODE OF CANON LAW

12       (ANNOTATED) 1993″, PAGES 350 TO 361

13

14       MR STEWART:  At tab 3, your Honour, is a letter from

15       David Begg & Associates to Corrs Chambers Westgarth dated

16       21 January 2005. I tender that.

17

18       THE CHAIR:  That hasn’t been captured previously?

19

20       MR STEWART:  It hasn’t, no.

21

22       THE CHAIR:  Very well, that will be exhibit 8-26.

23

24       EXHIBIT #8-26 LETTER FROM DAVID BEGG & ASSOCIATES TO CORRS

25       CHAMBERS WESTGARTH DATED 21/1/2005

26

27       MR STEWART:  At tab 4 there is an email from David Landa

28       to Julian McDonald dated 29 April 2005. I tender that.

29

30       THE CHAIR:  That will be exhibit 8-27.

31

32       EXHIBIT #8-27 EMAIL FROM DAVID LANDA TO JULIAN MCDONALD

33       DATED 29/04/2005

34

35       MR STEWART:  At tab 5 is a schedule, the names of the

36       accused priests having been redacted, but a list of accused

37       priests either ordained or incardinated to the Sydney

38       Archdiocese subject to a claim of sexual abuse made after

39       1 March 2001 against the Sydney Archdiocese, and then also

40       a string of emails, the last one being from Steven Glass to

41       Tony Giugni on 10 March 2014. I tender that, but let me

42       explain briefly where it fits in.

43

44            Your Honour and Commissioners will recall that

45       some days ago a figure of 55 offenders was mentioned, and

46       Cardinal Pell then referred subsequently to a figure of 29.

47       That is as against the figure of 842 priests ordained in or

 

1       incardinated to the Sydney Archdiocese since 1952.

2

3            The difference between the 55 and what is now a list

4       of 46 is that whilst claims were made against the Sydney

5       Archdiocese in respect of 55 priests, some of those – nine

6       as it happens – are now removed from the list because they

7       are not part of the set of 842, for reasons I don’t need to

8       go into, and there is also one in duplicate. Insofar as

9       the information available to the Royal Commission is

10       concerned, there are 46 priests against whom accusations of

11       child sexual abuse were made in the relevant period, which

12       is about 5.5 per cent.

13

14       THE CHAIR:  Yes, those documents will be exhibit 8-28.

15

16       EXHIBIT #8-28 SCHEDULE OF ACCUSED PRIESTS EITHER ORDAINED

17       IN OR INCARDINATED TO THE SYDNEY ARCHDIOCESE SUBJECT TO

18       A CLAIM OF SEXUAL ABUSE MADE AFTER 1/03/2001 AGAINST THE

19       SYDNEY ARCHDIOCESE, TOGETHER WITH A STRING OF EMAILS, THE

20       LAST BEING FROM STEVEN GLASS TO TONY GIUGNI ON 10/03/2014

21

22       MR GRAY:  Your Honour, I don’t have an objection to the

23       document being tendered, but I should say for the record

24       that my instructions are that the correct figure is 32, not

25       46. There has been a great deal of email correspondence

26       about this.

27

28       THE CHAIR:  Someone should be able to count them up.

29

30       MR GRAY:  Of course. Both sides have counted them and

31       different numbers have been reached.

32

33       THE CHAIR:  All right. I guess we’ll have to count them

34       for ourselves.

35

36       MR STEWART:  Your Honour, there are some definitional

37       issues with regard to time periods. I think the difference

38       between my learned friend and I is actually down to, now,

39       three. I can identify exactly who they are —

40

41       THE CHAIR:  I don’t think we’ll take the cardinal’s time

42       with this. We can do that later.

43

44       MR STEWART:  As your Honour pleases.

45

46            Next, behind tabs 6 and 7 – it should all be tendered

47       together – are a heads of agreement, a deed of release and

 

1       a statement of claim, and behind tab 8 there is a defence.

2       All those can be tendered together.

3

4       THE CHAIR:  So it’s the documents relating to a heads of

5       agreement, which include a statement of claim and I assume

6       a statement of defence; is that right?

7

8       MR STEWART:  That’s right.

9

10       THE CHAIR:  Yes, we will make those together exhibit 8-29.

11

12       MR STEWART:  And, your Honour, in fact at tab 9 is another

13       document which goes with those as well. It just shows the

14       payment as having been made.

15

16       THE CHAIR:  We will include that in exhibit 8-29.

17

18       EXHIBIT #8-29 DOCUMENTS BEHIND TABS 6, 7, 8 AND 9, BEING

19       DOCUMENTS RELATING TO A HEADS OF AGREEMENT

20

21       MR STEWART:  As your Honour pleases.

22

23       THE CHAIR:  You have some more questions?

24

25       MS GERACE:  Yes, thank you, your Honour.

26

27       <EXAMINATION BY MS GERACE CONTINUING:

28

29       MS GERACE:  Q.  Cardinal, yesterday you said that before

30       John Ellis’s litigation, the position of the archdiocese

31       was to accept the trustees as the proper defendant in the

32       proceedings and that Ellis in fact represented a departure

33       from that practice?

34       A.  Certainly before I came, on at least one occasion, the

35       trustees had been accepted as such. It would be simply

36       a matter of record as to whether this was the first.

37       I think it was the first on which I was involved.

38

39       Q.  Are you able to know from your experience that in fact

40       on many occasions, both in the Sydney Archdiocese and

41       otherwise, a practice did exist whereby the church would

42       accept the trustees as a proper defendant on occasion?

43       A.  I had some such awareness.

44

45       Q.  And that that was one of the issues which either

46       yourself or Dr Casey or Danny Casey sought an opinion about

47       from Corrs, as to whether or not that practice should be

 

1       adopted or continued?

2       A.  We were keen to run in parallel what was done in

3       Sydney and Melbourne, and advice had been sought on

4       a number of legal issues and I now realise that was one of

5       them.

6

7       Q.  The purpose of my questions, cardinal, was merely to

8       ask, in those circumstances, will you now withdraw from the

9       record your suggestion that Mr Ellis and his lawyers lacked

10       judgment in deciding to sue the trustees as a defendant?

11       A.  I wouldn’t want to upset Mr Ellis in any shape or

12       form, but I think the Court of Appeal unanimously said that

13       their approach was mistaken on this matter of the trustees.

14

15       Q.  Yes, I accept that, cardinal. There is no doubt that

16       that is, in fact, what the Court of Appeal held. But in

17       your evidence yesterday, you went further and seemed to

18       suggest that even countenancing a claim against the

19       trustees somehow evidenced some lack of reasonableness or

20       judgment on the part of Mr Ellis and his lawyers, and I’m

21       asking, in the light of the fact that there was a practice,

22       at least on some occasions, that the church would accept

23       the trustees as a proper defendant, the joining of the

24       trustees to the litigation in and of itself did not

25       evidence unreasonableness or a lack of judgment on behalf

26       of Mr Ellis or his lawyers?

27       A.  I can, first of all, speak of my beliefs at the time,

28       and I felt that their continuing attempts to establish

29       this, even after the Court of Appeal had ruled, taking the

30       matter to the High Court – I found it very difficult to

31       understand.

32

33       Q.  Is that as far as I’ll be able to get you this

34       afternoon, cardinal?

35       A.  Well, if you suggest one or two – I believe you have

36       already clearly overstated my position, but if you have one

37       or two other suggestions, I’ll honestly try to tell you

38       what I then thought.

39

40       THE CHAIR:  Q.  Cardinal, you know now, don’t you, as we

41       discussed yesterday, that there are many cases where the

42       trial judge rules against a plaintiff, the Court of Appeal

43       unanimously rules against a plaintiff, but the High Court

44       takes a different view – you know that?

45       A.  It didn’t in this case, your Honour.

46

47       Q.  But you do now.

 

1       A.  It didn’t in this case.

2

3       Q.  No, no, it didn’t in this case, but you know that that

4       happens, don’t you?

5       A.  You’ve just told me, your Honour, and of course, if

6       you say so, that’s it.

7

8       Q.  But you didn’t know previously?

9       A.  I thought you had to get special leave to appeal to

10       the High Court —

11

12       Q.  Yes, you do.

13       A.  — and it was very rare.

14

15       Q.  But even so, do you understand that there are many

16       cases where all the judges below the High Court say one

17       thing, but the High Court says the opposite?

18       A.  I’m surprised that it happens on many occasions, but

19       I don’t know.

20

21       MS GERACE:  Q.  If I could assist, if document 303 could

22       be brought up. Do you see the paragraph beginning, “The

23       evidence against the Trustees”, cardinal?

24       A.  Yes.

25

26       Q.  This is a summary to you of the decision of the judge

27       at first instance, and it is a summary provided by your

28       lawyers to you. Do you see the paragraph beginning:

29

30            The evidence against the Trustees, although

31            equivocal, is enough to produce an arguable

32            case that they were, at all relevant times,

33            the entity which the Archdiocese adopted

34            and put forward as the permanent corporate

35            entity or interface between the spiritual

36            and temporal sides of the Church legally

37            responsible for the acts and omissions of

38            the Archbishop and his subordinates …

39

40       A.  I understand what is written there.

41

42       Q.  So do you understand that a judge of the Supreme Court

43       at first instance found that the suggestion by the

44       plaintiff that the trustees might be a proper defendant to

45       his action was prima facie reasonable and arguable?

46       A.  What, in fact, this judgment says is that there was an

47       arguable case “which the archdiocese adopted and put

 

1       forward as the permanent entity or interface between the

2       spiritual and temporal sides of the church legally

3       responsible”, put the trustees forward as that, and we did

4       not accept that.

5

6       Q.  Yes, I understand that, cardinal, but in those

7       circumstances, can I ask you again: will you withdraw from

8       the public record any suggestion that Mr Ellis or his

9       lawyers were unreasonable or lacked judgment in deciding to

10       sue the trustees of the Archdiocese of Sydney?

11       A.  I am prepared to withdraw that now, but I would have

12       to say that at the time that wasn’t my conviction.

13

14       Q.  No, I understand that. Thank you, cardinal. Now if

15       I can ask you some further questions about the legal

16       defence. Would you agree that the course undertaken by the

17       church was to decide to avail itself of every legal defence

18       available in pursuit of her objectives?

19       A.  Every proper legal defence.

20

21       Q.  You would agree with that suggestion? And we’ve

22       already established from the evidence yesterday that before

23       suing, the church’s offer, we now all agree, was

24       inadequate?

25       A.  Yes.

26

27       Q.  And the evidence now establishes universally that

28       after suing, the church refused to negotiate in terms of

29       John Ellis’s substantive claim?

30       A.  Yes.

31

32       Q.  In those circumstances, and given that every witness

33       has accepted the fact of John Ellis’s abuse, and given your

34       own evidence about the objectives of the church in seeking

35       to deter Ellis and other victims from suing, would you

36       accept now that the costs incurred by the church were in

37       fact costs incurred as a result of its own objectives

38       rather than the claim brought by Mr Ellis?

39       A.  No, I couldn’t accept that. We never initiated the

40       case. We defended it. We believed there was a very

41       significant principle involving the trustees, and we did

42       defend that and were prepared to do so.

43

44       Q.  You gave some evidence yesterday about the practice

45       adopted by the church, on advice, not to nominate

46       a defendant or give the plaintiff any assistance in finding

47       a defendant to sue; you’re aware of that?

 

1       A.  Yes.

2

3       Q.  Do you now know or did you know at the time that

4       John Ellis’s lawyers tried to obtain a copy of insurance

5       policies held by CCI that might answer to his claim?

6       A.  No, I’ve got no recollection of that.

7

8       Q.  If you will accept from me that the documents

9       establish that in opposition to a subpoena – so if you

10       understand what I mean by that – John Ellis’s lawyers

11       issued a subpoena to CCI —

12       A.  And the force of a subpoena is?

13

14       Q.  To mandate or compel a party to produce documents to

15       a court.

16       A.  Yes.

17

18       Q.  That subpoena was issued to CCI Insurances?

19       A.  Yes.

20

21       Q.  That was vigorously opposed by CCI?

22       A.  Mmm-hmm.

23

24       Q.  And the costs incurred – one letter from Mr Dalzell

25       estimates that CCI spent between $20,000 and $30,000

26       defending that subpoena, about the same sum of money that

27       had been offered to Mr Ellis for all his years of abuse,

28       15 years of psychiatric symptoms, a failed marriage and

29       various other difficulties. Now, in those circumstances

30       and given that the church determined it was appropriate to

31       spend – for whatever reason, cardinal; and I don’t want to

32       go into the rights and wrongs of it, but for whatever

33       reason – a four-day hearing disputing the abuse and

34       challenging his extension of time and challenging various

35       other legal issues – in those circumstances, would you

36       agree that the costs incurred and the sum incurred bore

37       very little relation to the matters that were actually in

38       dispute between Mr Ellis and the church at the time?

39       A.  That’s a long question. There are different bodies in

40       the church. Catholic Church Insurances and ourselves are

41       different bodies. I mentioned that we separated ourselves

42       from the Catholic Church Insurances in terms of managing

43       the case. Of course, in retrospect now, there are many,

44       many things we wouldn’t do, and I certainly wouldn’t

45       endorse the expenditure of $30,000 – $20,000 or $30,000

46       resisting what I gather is a directive to produce

47       something.

 

1

2       Q.  One of the issues that was agitated by the lawyers was

3       whether or not John had started his claim in time; do you

4       understand that that was one of the matters put before the

5       court?

6       A.  I do.

7

8       Q.  Even aside from the abuse?

9       A.  Yes.

10

11       Q.  In circumstances where the Towards Healing protocol

12       itself acknowledged that victims of abuse went through

13       a long period of silence, denial and repression, I suggest,

14       cardinal, that under no circumstances should the church

15       have sought to advance to the court an argument that

16       Mr Ellis took too long to commence his proceedings?

17       A.  I don’t think that was the point of the investigation.

18       The point that was put to the proof here was the time

19       between his realisation and when he took action.

20

21       Q.  Yes, and considerable time was spent on that very

22       point, going through his psychiatric records to determine

23       what precise date he had come to realise the full impact of

24       his sexual abuse; do you understand that was what a large

25       part of the questioning was directed to?

26       A.  Which is a little different from your original

27       suggestion, but that is correct.

28

29       Q.  On that point alone, even the point that you say, the

30       narrower point, cardinal – and I accept your

31       clarification – even on that narrower point, spending any

32       amount of time arguing about on what day John realised the

33       full impact of his sexual abuse, given the church’s own

34       recognition of the long periods of silence, denial and

35       repression that victims of sexual abuse suffer, I suggest

36       that it was never an appropriate strategy for the church to

37       undertake?

38       A.  I do not believe it’s – I have objected to the nature

39       and the length of the questioning, I don’t think it was an

40       appropriate course to take, but not for the reason that you

41       suggest, because I think that the questioning was just too

42       long, too intrusive, hurtful.

43

44       Q.  To the extent this Commission examines these issues

45       and determines, if it does determine, that the strategies

46       adopted by the church in the litigation were ones that

47       should not properly ever have been undertaken, it would be

 

1       reasonable to argue that the church’s and CCI’s decision

2       later not to enforce costs orders against John Ellis was

3       really the least that it could do in all of the

4       circumstances; would you agree with that?

5       A.  I never at any stage contemplated doing anything

6       improper, and I don’t believe that our lawyers ever

7       suggested anything that was legally improper, and I do not

8       believe that the Court of Appeal would have unanimously

9       approved any improper behaviour.

10

11       Q.  Can I ask you some questions, please, about insurance

12       and the present position with insurance with CCI, as far as

13       you are able to assist us, please. As far as you know,

14       does Catholic Church Insurances insure a priest for

15       criminal conduct?

16       A.  No, and it’s a moot point whether they can insure

17       somebody for criminal conduct.

18

19       THE CHAIR:  Q.  Cardinal, the criminal conduct we’re

20       talking about is a deliberate tort; you understand that?

21       A.  That’s a deliberate legal offence.

22

23       Q.  No – well, it’s that, but it’s also a civil wrong.

24       A.  Yes.

25

26       Q.  I mean, if you hit someone in the street, you may

27       commit a criminal assault, but you will also be liable in

28       the civil law for assault. Do you understand?

29       A.  I understand that now.

30

31       Q.  There’s no reason why the insurer couldn’t provide

32       insurance for a civil wrong, could it?

33       A.  I simply don’t know, but if you say that they can,

34       good.

35

36       Q.  They often do.

37       A.  Good.

38

39       MS GERACE:  Q.  Do I understand from your answers that

40       you are unable to tell us whether or not Catholic Church

41       Insurances would insure a priest and cover consequences of

42       sexual abuse of children by that priest?

43       A.  At the moment I don’t believe they do. In practice,

44       the church does put forward money, recognising our moral

45       responsibility, but in Sydney we certainly don’t pay the

46       legal defences for any priest that is accused. We don’t

47       accept the principle of vicarious liability. I’m a little

 

1       bit unsure as to what the insurance does or doesn’t do.

2       I don’t think they do much, if anything. But we recognise

3       our moral responsibilities and we pay money in reparation,

4       although in a legal sense we’re not so obliged to. That’s

5       my understanding.

6

7       Q.  May I ask, then, in relation to a bishop or other

8       superior, in circumstances where they have had prior

9       knowledge of paedophilic activities by a priest and either

10       failed to act or transferred the priest, and subsequently

11       a claim is made in relation to the same offending priest –

12       do you understand the situation I’m describing?

13       A.  I do.

14

15       Q.  So in circumstances where a superior might be said to

16       have had prior knowledge of conduct of a priest and then

17       the priest abuses after that, is it fair to say that, in

18       those circumstances, Catholic Church Insurances regularly

19       failed to indemnify the church or the bishop for claims —

20       A.  They refuse to.

21

22       Q.  Refuse to. In those circumstances, that would be an

23       accurate description of what has been the practice, would

24       it not, cardinal?

25       A.  Yes.

26

27       Q.  In those circumstances, they say that the bishop or

28       church had prior knowledge and failed to act and therefore

29       should be denied insurance under the policy or whatever

30       arrangements were in place?

31       A.  If that was the case, yes.

32

33       Q.  If that’s the case. So in those circumstances, where

34       someone is abused by a priest and the bishop or the church

35       had prior knowledge of their offending, were a claim to be

36       brought, the position would be such that CCI insurance

37       would not cover those claims?

38       A.  Could you just repeat the question, I’m sorry?

39

40       Q.  Certainly. So in the circumstance where a claimant

41       chose to sue a priest individually for sexual abuse by that

42       priest —

43       A.  Yes.

44

45       Q.  — and/or the bishop personally, in circumstances

46       where the bishop had prior knowledge that the priest was

47       a paedophile —

 

1       A.  Yes.

2

3       Q.  — CCI would not cover or answer either of those

4       claims?

5       A.  That is correct.

6

7       Q.  And in a circumstance where, for instance, the bishop

8       who had prior knowledge had died and a new bishop was in

9       his stead, the new bishop would say, “I can’t answer this

10       claim because I had nothing to do with supervising this

11       priest”?

12       A.  If – that is correct, if the accusation or the

13       responsibility is being sheeted home at the present bishop,

14       as distinct from the previous bishop.

15

16       Q.  So in that circumstance, there would be very little

17       recourse for that victim?

18       A.  We investigated that, and the estate of the bishop at

19       the time could be sued but could only be sued successfully

20       if it was demonstrated that he had prior knowledge and had

21       failed to act properly.

22

23       Q.  Do you mean to say that if he had or had not prior

24       knowledge? You said:

25

26            We investigated that, and the estate of the

27            bishop … could be sued but could only be

28            sued successfully if it was demonstrated

29            that he had prior knowledge and had failed

30            to act properly.

31

32       A.  That’s right, if he had been told that this priest was

33       a paedophile and let him continue, then obviously a case

34       could be argued successfully against him historically and

35       we believe against his estate.

36

37       Q.  But who would cover the estate – not CCI?

38       A.  We were told that there is a theoretical coverage for

39       such a bishop, provided he hadn’t done the wrong thing; in

40       other words, the estate of Cardinal Freeman might have been

41       sued in this case. We investigated that. It was covered

42       by insurance. But not, for example, if the archbishop at

43       the time had known and left an offender in place.

44

45       Q.  So we get to the very labyrinthine situation where

46       victims find it very difficult to identify who to sue and

47       when; do you agree with that, cardinal?

 

1       A.  Not in every case, but in many cases.

2

3       Q.  Would you agree that if the church wishes to meet its

4       commitment to put victims first, a much simpler solution

5       needs to be given to victims as to who they can sue and

6       when?

7       A.  I am on record as saying that.

8

9       Q.  And certainty in terms of there being funds to meet

10       any judgment?

11       A.  We meet whatever judgment the judgments require.

12

13       Q.  Because if the present situation or the situation as

14       it was in Ellis continues and the church runs technical

15       defences where key players are dead or are otherwise

16       impugned, that would lead to a situation of just bad luck

17       for the victims, wouldn’t it?

18       A.  There can be a dispute about whether there is

19       a technical defence or a defence of principle. I’m in

20       favour of clarification of the law, provided it runs across

21       all institutions.

22

23       Q.  Accepting that, so subject to there being a sense of

24       fairness to all institutions that might have this problem,

25       unless the position is remedied, if churches and other

26       bodies continue to run legal defences, technical or

27       otherwise, in these situations, child abuse victims tend to

28       suffer bad luck where the key players are dead or otherwise

29       impugned; do you agree with that?

30       A.  No, not entirely, because whatever the legal

31       situation, we – I’m tempted to say “always”, but generally

32       meet our responsibilities with some level of payments. We

33       acknowledge the moral responsibility even when we don’t

34       accept the legal principle of vicarious liability.

35

36       Q.  I want to deal with some misconceptions now, cardinal.

37       At the time John Ellis approached Towards Healing, the

38       evidence shows he was a devout Catholic; do you understand

39       that?

40       A.  I do.

41

42       Q.  He came to Towards Healing seeking help to come to

43       terms with his abuse and for spiritual assistance from his

44       church; do you accept that?

45       A.  Yes.

46

47       Q.  You would have heard the evidence that he has given

 

1       that he, at the time, was attending weekly mass; do you

2       understand that?

3       A.  Yes.

4

5       Q.  And that he had at one stage studied to be a priest

6       and was involved with various Catholic agencies throughout

7       his life; do you recall that evidence?

8       A.  Yes.

9

10       Q.  Do you recall also hearing evidence that he was noted

11       to have a strong desire to be believed about his abuse?

12       A.  Yes.

13

14       Q.  And he was, as many are when they come to Towards

15       Healing, a Catholic in crisis; would you agree with that

16       description?

17       A.  Yes.

18

19       Q.  He was, in every respect, the very typical person that

20       one would expect to walk through the doors of Towards

21       Healing for the very services promised by its protocol;

22       would you agree with that?

23       A.  Apart from – basically yes, but he’s also highly

24       intelligent, very well educated and – all this is to his

25       credit – in a very significant position.

26

27       Q.  I’m sure you don’t intend to make the comment in the

28       manner in which you’ve done – I don’t think you intend,

29       cardinal, to suggest that other people who walk through the

30       doors of Towards Healing are not intelligent?

31       A.  I think I’m being taken a little out of context.

32       I said “highly” – I wasn’t talking about other people in

33       any shape or form. I mentioned three characteristics in

34       answer to your suggestion that Mr Ellis was exactly the

35       same as other victims or survivors. All of them are

36       different. This is the ways – these are the ways he is

37       different.

38

39       Q.  Cardinal, the point I’m making to you is this: he was

40       in every respect the sort of person Towards Healing invited

41       into its process, was he not? “If you have been abused,

42       come to us”?

43       A.  Any victim who has been abused by church personnel is

44       invited to come to Towards Healing and should be treated

45       justly and compassionately.

46

47       Q.  This is the point that I want to make: the reactions

 

1       of yourself and others to John being intelligent led to

2       a situation of you misconceiving his bona fides in engaging

3       with Towards Healing?

4       A.  No, that’s not correct. Because a man’s intelligent,

5       I don’t conclude that he hasn’t got bona fides.

6

7       Q.  To the extent that any evidence given to this

8       Commission suggests that there was any mala fides on

9       John Ellis’s part in his engagement with the Towards

10       Healing process at any stage, would you support

11       a retraction of that imputation?

12       A.  I’ve never made any suggestion of mala fides. If that

13       was made by anyone, not to my knowledge, I think it should

14       be withdrawn.

15

16       Q.  To the extent that any of the evidence suggests that

17       there was anything wrong or lacking in conscience or

18       bona fides in John commencing litigation, would you also

19       support a withdrawal of those suggestions from the record?

20       A.  Well, I’m not – I certainly haven’t made those myself,

21       to my knowledge. I wouldn’t want to. I don’t believe

22       I have. And I would need, before withdrawing them – I’ve

23       got no power to withdraw them on behalf of anybody else,

24       but I’d like to see what I would have to object to.

25

26       Q.  Do you understand that some of the evidence has been

27       given by some of the people in Towards Healing suggesting

28       that Mr Ellis was disingenuous or only after the money

29       through Towards Healing; do you recall hearing that

30       evidence?

31       A.  I did – I do remember that.

32

33       Q.  My point to you is: would you support a withdrawal of

34       those matters absolutely?

35       A.  I certainly wouldn’t say them. I suppose in a –

36       I certainly wouldn’t say them. I don’t support them.

37       Whether they should be withdrawn – I think the question

38       should be addressed to the person who made the suggestion.

39

40       Q.  I might put that to the archdiocese and see what their

41       response is, then, cardinal. I want to ask you now finally

42       about your meeting on 18 February 2009 with John Ellis and

43       Monsignor Usher. Do you recall the meeting?

44       A.  I do.

45

46       Q.  This was a meeting that had been arranged to provide

47       a pastoral response to John following the litigation?

 

1       A.  Correct.

2

3       Q.  During that meeting, cardinal, John Ellis asked you to

4       explain how it had happened that he had gone to the church

5       for help and he had been treated in the manner in which he

6       had been treated through the courts; do you recall that?

7       A.  Yes, generally, yes.

8

9       Q.  He had asked you to explain or he expressed a view

10       that he could not believe the way he had been treated,

11       given that he had come to the church in Towards Healing and

12       the church had told him that they believed he had been

13       abused by Father Duggan; do you recall him saying words to

14       that effect?

15       A.  Yes, there are many people in the church, and in this

16       case at least one person evinced doubts or scepticism about

17       that on the balance of probabilities. Others were very

18       clear, increasingly clear, in accepting that he had been

19       abused, but there are a number of actors for the church.

20

21       Q.  I understand, but do you know that when he met with

22       Monsignor Usher, Monsignor Usher had conveyed to him his

23       acceptance of John’s statement of abuse and conveyed the

24       church’s belief in what he had said in the facilitation?

25       A.  And I concurred and concur with that completely.

26

27       Q.  I’m going back to the meeting on 18 February. I’m

28       just going over what John was seeking from you in that

29       meeting. That’s why I’m putting it back to you in this

30       way.

31       A.  Yes, and I just repeat, at that meeting I fully

32       concurred with Monsignor Usher.

33

34       Q.  Thank you. But during the meeting on 18 February

35       2009, cardinal, John wanted to know from you how he could

36       have been treated in the manner in which he was, given that

37       the church had earlier in the facilitation told him that

38       they believed him – he expressed that to you, didn’t he?

39       A.  Something along those lines, yes.

40

41       Q.  And he said to you he wanted to know who had been

42       telling the lawyers to act in the way they did, something

43       along those lines?

44       A.  Something along those lines, yes.

45

46       Q.  He also said to you, “I can’t believe that I only

47       asked for $100,000 initially, and the church later refused

 

1       to enter into any negotiations with me whatsoever” – he

2       told you that, didn’t he?

3       A.  He did.

4

5       Q.  And you said to him, “I’d never heard of the $100,000

6       before”?

7       A.  I did.

8

9       Q.  He said to you that he couldn’t believe that you had

10       spent more on legal fees than what he was asking; do you

11       recall him saying words to that effect?

12       A.  I do.

13

14       Q.  And you said something like, “I can’t believe that’s

15       true. I would never have done something like that”?

16       A.  Well, that depends on when you’re making the decision.

17

18       Q.  Yes.

19       A.  I mean, when he asked for $750,000, we wouldn’t have

20       anticipated spending $750,000 on legal costs then. But as

21       a general proposition, it doesn’t make sense.

22

23       Q.  I understand. And that’s what you told John on that

24       day?

25       A.  Yes.

26

27       Q.  That it didn’t make sense?

28       A.  Yes.

29

30       Q.  Even so, and I accept what you say about it depends on

31       when you’re making the decision, but notwithstanding,

32       a significantly greater sum of money was spent on legal

33       costs than what John was asking for in the litigation?

34       A.  And I regret that – not primarily in terms of the

35       money spent but in terms of the suffering that was

36       produced.

37

38       Q.  And John said to you in that meeting that he could not

39       understand how he, as a victim of sexual abuse, could be

40       left with no redress in the circumstances where he had been

41       believed at the facilitation and yet he had been resisted

42       all the way through the courts; do you recall him saying

43       that?

44       A.  Something along those lines. I might say by way of

45       explanation, I didn’t prepare myself in any detailed way

46       for the events in the court. I certainly wasn’t there to

47       debate with Mr Ellis. I was there to listen to him,

 

1       sympathise with him and readily concede that many things

2       had been done wrong.

3

4       Q.  And you acknowledged that to John – I think you said

5       something along the lines that mistakes had been made?

6       A.  Yes.

7

8       Q.  And he says that you said that what occurred to him

9       was a form of legal abuse; you’re aware of that?

10       A.  I’m aware that he’s said that.

11

12       Q.  And you’re aware that he wrote to you in a letter

13       shortly thereafter confirming or acknowledging what you had

14       said to him, your acknowledgment that what had occurred to

15       him was a form of legal abuse?

16       A.  He did use the term “legal abuse” in his letter.

17

18       Q.  And your chancellor responded to him acknowledging the

19       use of the same term in the correspondence?

20       A.  He did.

21

22       Q.  And you’re aware that Monsignor Usher has given

23       evidence before this Commission indicating that whilst he

24       does not recall who used the term “legal abuse”, he does

25       recall that following discussion about what had happened,

26       there was an agreement reached between those present that

27       what occurred to John was legal abuse, a legal abuse of

28       process; do you know that Monsignor Usher has given that

29       evidence?

30       A.  I wasn’t aware of that in detail, but I would fully

31       accept it.

32

33       Q.  So in fully accepting what Monsignor Usher says, do

34       you acknowledge now that in 2009 you did convey to John an

35       acceptance of the position that what had occurred to him

36       during the litigation was a form of legal abuse of process?

37       A.  I think if you went through the individual items,

38       there would be probably next to no differences between us.

39       I don’t believe I used the term “legal abuse” because it

40       was a new term to me; I didn’t know what it meant, and, as

41       I have said, I don’t believe that the Full Court of Appeal

42       would find in favour of something which was advanced with

43       legal – with legal abuse.

44

45       Q.  You know the Full Court of Appeal was making

46       a decision based on whether or not the trustees were the

47       proper defendant?

 

1       A.  I do.

2

3       Q.  I want to quarantine that issue of whether the

4       trustees were the proper defendant. You’ve already given

5       some evidence about whether or not and how that might have

6       been run in a less injurious way; do you remember that line

7       of questioning?

8       A.  Yes, yes, yes.

9

10       Q.  I want to come back to the meeting in 2009.

11       I understand you may not have used the term “legal abuse”

12       yourself. I’m putting to you the suggestion that what you

13       agreed in that meeting was that the manner in which John

14       had been dealt with in the litigation – the refusal to

15       negotiate, the church first accepting his complaint and

16       telling him they believed him, then denying that matter,

17       the church’s refusal to offer him any money after Towards

18       Healing, the church’s refusal of his $100,000, for whatever

19       reason – that all of those matters constituted an abuse of

20       process and that, in that meeting in February 2009, you

21       acknowledged that to John Ellis?

22       A.  I acknowledged, I’d say, nearly all those ingredients.

23       I can’t remember any reference to “abuse of process”. I’ve

24       been constantly assured by my lawyers that there was no –

25       nothing improper in the legal side of things. Depending on

26       how you define “legal abuse”, leaving aside the question of

27       being legally improper, I think it’s a good – I didn’t

28       think so then. I don’t believe I used the phrase.

29       I didn’t strenuously object to somebody else using the

30       phrase. It’s not a bad covering, catch-all or summing-up

31       the many bad things that happened to him.

32

33       Q.  Thank you, cardinal. I want to just finish on

34       building on your acknowledgment, then, as of now, of the

35       mistakes that were made. I think you know that Mr Ellis

36       conveyed to you then his relief that you were able to

37       acknowledge some of those mistakes in the meeting with him,

38       as he did in his correspondence afterwards?

39       A.  He did, and I appreciated that.

40

41       Q.  Cardinal, in looking at the mistakes that you said

42       were made, as you acknowledged them then and as you’ve

43       acknowledged them since, Monsignor Usher has given evidence

44       to the effect that one of the difficulties often faced by

45       church authorities is that they make the mistake of putting

46       the interests of the church equal to or ahead of the

47       interests of abuse victims.

 

1       A.  Yes.

2

3       Q.  You would agree that that was often a tension within

4       the church, reconciling those interests?

5       A.  It’s regularly a tension in controverted cases.

6

7       Q.  In Mr Ellis’s case, would you agree that the main

8       mistake was putting the financial or other interests of the

9       church equal to or ahead of the interests of John Ellis,

10       the abuse victim?

11       A.  No, I wouldn’t agree with that. Always we, however

12       imperfectly, recognised the priority of the needs of the

13       victim. We did that.

14

15       Q.  Would you agree, cardinal, that the interests of the

16       church should never be equal to or ahead of the interests

17       of an abuse victim?

18       A.  I agree with that.

19

20       Q.  And to the extent that the Commission finds that the

21       decisions taken by the church represented the church

22       putting its interests equal to or ahead of those of

23       Mr Ellis, you would agree then, cardinal, that that is

24       a mistake that should never, ever be repeated?

25       A.  If it is established that that was done is one thing.

26       Certainly it shouldn’t be done, and it shouldn’t be

27       repeated.

28

29       MS GERACE:  They are my questions.

30

31       THE CHAIR:  Q.  Cardinal, I just want to make sure that

32       we have on the record a clear answer to this question. You

33       accept that you gave instructions to defend the litigation,

34       don’t you?

35       A.  I do.

36

37       Q.  That was your decision?

38       A.  That is correct.

39

40       Q.  Now, before you made that decision, did you ask your

41       advisers how much it might be that the church would be able

42       to settle for rather than have to run the litigation?

43       A.  I don’t remember any such discussion, because we

44       were – I was, at any rate, moving from the premise that it

45       was millions that were being sought. Now, that has been

46       shown to be inaccurate.

47

 

1       Q.  Do you not think, on reflection, that the proper

2       course to take, as the church and making a decision on

3       behalf of the church to defend, was to try to find out what

4       the real position was?

5       A.  Yes, and I thought we had done or were doing that.

6

7       Q.  But I understand you’re telling me that you didn’t do

8       that yourself; you didn’t ask your advisers, “What’s the

9       real position? How much does he really want?”

10       A.  That would have been the basis of all our discussions.

11       We were only dealing with realities, what might he have

12       wanted. That’s the basis for every discussion in this

13       particular case.

14

15       Q.  Well, the reality was he’d said to your people that he

16       wanted $100,000, hadn’t he?

17       A.  But, see, I didn’t know that until later, and —

18

19       Q.  Well, just a minute. You say you were involved in

20       discussions and all your discussions were about how much

21       does he want. Your people knew he wanted $100,000.

22       A.  A number of things, your Honour.

23

24       Q.  Yes?

25       A.  All the discussions were certainly not about money.

26       The discussions were about the proper defendants. The

27       discussions were about whether it could be denied or put to

28       the proof. And I can’t remember detailed discussions about

29       the amount of money, but I can’t remember anybody disputing

30       that we were facing a claim for millions. That was

31       subsequently clear in Begg’s letter where he spoke about

32       losing a job of $300,000 and this going on into the future.

33       Now, that wasn’t – that information wasn’t available at

34       that stage, but it confirmed the basis on which I was

35       proceeding, and in the light of what John said, he said now

36       that he would have settled for $100,000 without any

37       release. Now, I didn’t know that.

38

39       Q.  Well, again can I ask you – I’d just like a clear

40       answer.

41       A.  Good.

42

43       Q.  Before you made the decision to defend the

44       proceedings, did you ask your advisers how much they

45       understood John Ellis wanted?

46       A.  I didn’t ask that because we had a shared conviction

47       on that.

 

1

2       Q.  Well, you say you had a shared conviction. Your

3       advisers knew he’d asked for $100,000, didn’t they?

4       A.  I believe now, in retrospect, they did and – but it’s

5       very garbled about what they knew and whether they rejected

6       that because he wouldn’t sign a release. I just don’t

7       know. I wasn’t in the loop on that at all. Perhaps they

8       all presumed that I was.

9

10       THE CHAIR:  Does anyone else have any questions?

11

12       <EXAMINATION BY MR SKINNER:

13

14       MR SKINNER:  Q.  Cardinal Pell, I appear for

15       Monsignor Rayner.

16       A.  Yes.

17

18       Q.  I’m obliged to ask you some questions, but you will be

19       relieved to hear they will be of fairly short compass.

20       Perhaps an appropriate point to start is I’ll remind you,

21       if I may, of what Ms Gerace was just refreshing your memory

22       on, and that is your meeting you had with John Ellis and

23       his wife in the company of Monsignor Usher in February

24       2009; do you recall that?

25       A.  Yes, yes.

26

27       Q.  Mr Ellis, in his statement to this Commission and his

28       subsequent evidence, quotes you as saying about the

29       ex gratia payment of $100,000, or his offer about that

30       $100,000, that you had no idea as to that; do you remember

31       that?

32       A.  I do.

33

34       Q.  He subsequently sent you a letter – which you had seen

35       by the time you gave your statement, because you refer to

36       it. After the meeting, he sent you a letter, a few days

37       later, dated 24 February 2009. Do you remember that?

38       A.  Yes.

39

40       Q.  And in that, he sent you some documents about the

41       $100,000. Now, I wonder if up on the screen could come

42       document 78 from the Towards Healing tender bundle. In his

43       letter of —

44       A.  This is from whom to whom, please?

45

46       Q.  This is John Ellis, in his letter to you after the

47       meeting of – I’ll just get that date right, if I can –

 

1       24 February —

2

3       THE CHAIR:  Is that the right document on the screen? Is

4       that the one you want?

5

6       MR SKINNER:  Sorry, I’ll just put it in context.

7

8       Q.  In his letter of 24 February 2009, he sent you a copy

9       of this document. I’ll show you the letter, if you want,

10       but this is the document he sent to you, saying, “I attach

11       for your records a file note indicating that someone

12       designated as RH was aware that the figure put to the

13       archdiocese as an appropriate gesture of atonement was

14       $100,000”, and it must have been this document, in context.

15       Do you recollect that?

16       A.  Yes.

17

18       Q.  Do you see “RH” is mentioned there?

19       A.  I’m not sure who “RH” is.

20

21       Q.  You can assume that it’s an assistant of

22       Michael Salmon’s at the time.

23       A.  Very good.

24

25       Q.  And this is consequently Michael Salmon’s file note.

26       Do you have a copy of your statement there?

27       A.  My statement?

28

29       Q.  Yes.

30       A.  Yes.

31

32       Q.  At paragraph 97, it would seem that this document

33       which John Ellis had sent to you a few days after your

34       meeting with him in February 2009 is the one you were

35       looking at there in being able to say, in paragraph 97 of

36       your statement:

37

38            … Mr Ellis put forward a figure of

39            $100,000 as “a notional figure based on

40            needs” …

41

42       That quote seems to come directly out of that file note

43       I just showed you?

44       A.  That would be correct.

45

46       Q.  So at the time you made your statement, your memory

47       had been refreshed by going back to see that file note;

 

1       that would be correct, wouldn’t it?

2       A.  That is – I don’t know what it means to say my memory

3       had been refreshed, but I had seen the evidence and studied

4       it very closely.

5

6       Q.  Yet still in your statement you say on this topic, at

7       paragraph 97, to the best of your recollection, you were

8       not made aware at the time of any of those figures or

9       offers, most relevantly the $100,000. Do you see that you

10       say that?

11       A.  I do.

12

13       Q.  And you go on to say:

14

15            I was not consulted, as best I recall,

16            about what financial amount should be

17            considered.

18

19       And again in paragraph 98 you refer to having no

20       recollection. Do you see that?

21       A.  I do.

22

23       Q.  Nonetheless, in these proceedings, I think even using

24       your own phraseology, you have hardened up your

25       recollection, as it were, to say that you weren’t told

26       specifically by Monsignor Rayner about that $100,000?

27       A.  I’m not sure that’s exactly what I said, but we could

28       check that. My recollections had hardened because

29       I realised that I couldn’t recall any occasion with the

30       vicar general in which I was consulted about setting

31       particular sums. Therefore, I concluded two things: one,

32       that I was never consulted about whether we go from $25,000

33       to $30,000 or anything else; and, secondly, that there was

34       never any extended discussion on this between myself or

35       anyone else. They were the two things – I don’t know

36       whether it’s – “hardened” is not the word – I mean, the

37       telling the truth, and those two things, after careful

38       consideration, were clarified in my mind.

39

40       Q.  Obviously it’s somewhat artificial ten years after the

41       event to go searching for things people said which don’t

42       seem to be recorded anywhere, but could it be this that has

43       perhaps affected your memory, in that you’ve been searching

44       your mind for a memory of being told that John Ellis would

45       settle for $100,000, because I would suggest to you that,

46       at least as far as Monsignor Rayner is concerned, he never

47       would have said that. His knowledge at the time – he has

 

1       given evidence, and it seems to be supported by some

2       documentation – is that it was the starting point of

3       John Ellis but that he was never of the view that Ellis

4       would settle for that amount. So perhaps you’re looking

5       for the wrong thing when you’re racking your memory, as it

6       were?

7       A.  No, no, I was also aware of that possibility. I tried

8       to remember it. I gather now, from what people have told

9       me, that when monsignor did mention that, he mentioned it

10       quickly and said, of course, he wouldn’t give the release.

11       Now, I found that out subsequently.

12

13       Q.  In any event, when senior counsel assisting was asking

14       you about these issues – page 6338 in the transcript last

15       Monday – you did concede with her that it was remotely

16       possible that somebody said to you he wanted to settle for

17       $100,000 but wouldn’t give a release, so you have some

18       acceptance of the possibility, at any rate, of the issue

19       being raised in that way?

20       A.  Well, as a person involved in many, many areas of

21       life, a person who is not 30 years younger than he is,

22       I have learnt to be very careful when I say that something

23       didn’t happen, in case my memory is slightly mistaken. On

24       this occasion, for better or for worse, I have to say in

25       honesty I cannot recall any discussion on this issue.

26

27       Q.  Can I ask you, then, about the $30,000, and that’s in

28       context, as you know – the evidence is that that was an

29       increment of $5,000 on an initial offer of $25,000?

30       A.  That’s correct.

31

32       Q.  And you have indicated that that would have been

33       a grotesque offer and you recoil from it as an offer given

34       to a man who has just lost a job of $300,000 a year;

35       correct?

36       A.  Correct.

37

38       Q.  However, can I ask you to assume that, in fact,

39       Monsignor Rayner’s evidence about his thinking in offering

40       the $5,000, as given to this Commission on 17 March 2014 –

41       page 5816 of the transcript – was that his thinking in

42       offering the $5,000 was as a further amount of money for

43       counselling or therapy to Mr Ellis, him having just lost

44       his job. He wasn’t offering it to him as compensation in

45       that sense at all.

46       A.  That, in a certain sense, is irrelevant. This detail

47       confirmed me in my conviction that I’d never heard about

 

1       this, because I immediately would have said, “What on earth

2       is that $5,000? How is that related to $300,000 a year?”

3       This, as to whether it was counselling or not – I would

4       have remembered if that was said to me, but that particular

5       detail strengthened my conviction that I hadn’t heard about

6       it.

7

8       Q.  So even looking at it in that light, not as an offer

9       made to compensate a man for the present-day value of

10       a great deal more economic loss to him, but an offer made

11       to a man for more counselling, you still don’t agree that

12       Monsignor Rayner told you about it?

13       A.  Monsignor Rayner certainly never told me that.

14       I think it – in an otherwise inexplicable situation,

15       I think it does usefully explain what he was trying to do.

16

17       Q.  I have worked backwards a bit to the third area where

18       there is some contest between your evidence and my

19       client’s, and that is the $25,000. Just briefly on that,

20       cardinal, I think you agreed yesterday – again, this is

21       page 6505, for the record, for those following it – that

22       overwhelmingly in Towards Healing, your expression was:

23

24            The Towards Healing grants are to answer

25            particular needs. Overwhelmingly, they’re

26            $20,000 or $30,000 or $40,000.

27

28       A.  That’s correct.

29

30       Q.  So $25,000 was squarely within that range, wasn’t it,

31       at the time?

32       A.  That is correct.

33

34       Q.  When you were asked by counsel assisting about whether

35       or not the monsignor’s evidence, given some days before you

36       came to this Commission, was wrong – this is at transcript

37       page 6289 – counsel assisting said at 6289 line 36:

38

39            Monsignor Rayner has given evidence,

40            cardinal, and his evidence is that he

41            received authorisation from you in relation

42            to the offers he made in respect of

43            Mr Ellis’s complaint; is that right?

44

45       Down below, you said, “That’s not correct”. You were

46       asked:

47

 

1            So Monsignor Rayner is wrong in the

2            evidence he gave?

3

4       And you said:

5

6            I certainly did not participate in any

7            extended discussion on this matter.

8

9       So is it possible that you participated in a passing

10       discussion, in a corridor as you met him, in an ad hoc way?

11       A.  Certainly it’s got to be possible. I think what – I’m

12       not saying I’ve got any recollection of it. What I think

13       is important, though, is that Rayner wouldn’t have been

14       expected to report to me or ask for permission to give

15       $25,000 or $30,000 or $40,000. He had the authority to do

16       that. He probably did it regularly. He didn’t consult me

17       in any regular basis on that at all. That was within the

18       authority of the vicar general.

19

20       Q.  I understand that, and you’ve given that evidence, but

21       what if the particular man doing that particular job was

22       struggling a little, had his confidence shaken – wouldn’t

23       it be perfectly natural for him to go to the boss, as it

24       were, which is what you were?

25       A.  Whose confidence was shaken?

26

27       Q.  Monsignor Rayner’s. I think you said yourself that he

28       was having some difficulties in the job.

29       A.  He certainly was. Now, whether his first instinct

30       would be to come to me, I doubt it.

31

32       Q.  In any event, continuing the answer I was taking you

33       to – and this is the final area; I’m nearly finished, in

34       short. You said:

35

36            I certainly did not nominate any amount of

37            money.

38

39       I suggest to you that, in fact, Monsignor Rayner actually

40       hasn’t really said that about you in relation to the

41       $25,000. His evidence is that he doesn’t know where that

42       first came from, that figure.

43       A.  I accept that.

44

45       Q.  Then you said:

46

47            There‘s a whole lot of things wrong with

 

1            the account.

2

3       Meaning his account.

4

5            There was no cap.

6

7       He has never said that, either.

8       A.  I’m pleased to hear that.

9

10       Q.  Then finally:

11

12            And the suggestion that after a man has

13            lost a job of $300,000 a year, I would

14            agree to offer him $5,000 extra by way of

15            compensation I regard as grotesque.

16

17       I think I’ve just explained to you that he didn’t say that,

18       either.

19       A.  Then I’m – your explanation is a useful clarification.

20

21       Q.  So in that context, do you still adhere to the

22       position of your evidence given in this Commission, which

23       has hardened from what you had in your statement, as

24       I reminded you, that Monsignor Rayner is not correct in his

25       evidence?

26       A.  In many details, unfortunately, in honesty I can’t do

27       otherwise. I don’t like the word “hardened”. My evidence

28       is clarified on those two specific points. That does not

29       touch the possibility that something might or might not

30       have been said in passing, but it must have been

31       unremarkable. If a man, for example, had authority to go

32       to $25,000, $30,000 or $40,000, and somebody wanted

33       $100,000, I would expect him to come and ask me, and when

34       I got something like that, my first instinct would be to

35       discuss it with my advisers. None of that happened.

36

37       MR SKINNER:  Thank you. Those are my questions.

38

39       THE CHAIR:  Yes, Mr Gray?

40

41       <EXAMINATION BY MR GRAY:

42

43       MR GRAY:  Q.  Cardinal, quite early in your evidence on

44       Monday of this week you were asked a series of questions

45       about your knowledge of amounts of money offered in the

46       Towards Healing process with Mr Ellis. As part of that

47       process, it was suggested to you that three of your

 

1       advisers – Mr Davoren, Dr Casey and Mr Salmon – had given

2       certain evidence, which was put to you in a summary

3       fashion. Do you remember that?

4       A.  I do.

5

6       Q.  You were then asked whether each of them was “wrong”

7       in what he had said according to such summaries; do you

8       remember that?

9       A.  I do.

10

11       Q.  I want to take you briefly to what was put to you in

12       each of those cases and your response on Monday and then

13       take you to the transcript of what each of those three

14       actually said on the point and ask you for your response to

15       that.

16

17            The first one is Mr Davoren, if we could have

18       page 6287 on the screen. The passage that I want to take

19       you to is on line 1 on that page. This was Ms Furness

20       asking you a question on Monday. If you could just read

21       that question from line 1 to line 7, and then your answer?

22       A.  The first six lines, down to 7 – I’ve read that.

23

24       Q.  Yes, the question.

25       A.  “Now, is he wrong in the evidence he gave?”

26

27       Q.  Yes. Do you see what was put in the course of that

28       question was that Mr Davoren had given evidence that the

29       decision whether a complainant should receive compensation

30       was made by the archbishop in every case; do you see that?

31       A.  I do.

32

33       Q.  That was the suggestion put.

34       A.  Yes.

35

36       Q.  You were asked to accept that that’s what he had said

37       and you were asked whether he was wrong, and you said you

38       thought he was wrong if that’s what he’d said?

39       A.  That’s correct.

40

41       Q.  Could I take you to page 5502 of the transcript, which

42       is where he said what he did say. If we start at line 12

43       and if you just follow this to yourself, cardinal, as we

44       go, at line 12 he was asked whether he was involved in the

45       process himself of deciding whether a complainant should

46       receive compensation, and he said he wasn’t.

47

 

1            We get down to the question at line 20 and he was

2       asked who did he understand made that decision, and he said

3       he understood it was the church authority. Then the

4       question was, “Who”, and he said, “Well, finally the

5       archbishop.” The question was:

6

7            So it was your understanding that those

8            decisions were made by the archbishop?

9

10       And he said:

11

12            In the cases involving Sydney, yes.

13

14       Do you see that?

15       A.  I do.

16

17       Q.  So the evidence that he gave was as to his

18       understanding rather than as to what actually happened. Do

19       you see that?

20       A.  I do.

21

22       Q.  Given that his evidence was as to his understanding,

23       what is your response now as to what his understanding was

24       as to whether it was correct or not?

25       A.  No, I don’t think it’s correct.

26

27       Q.  Secondly, Mr Salmon. If I could take us back to

28       page 6290, I’m now taking you to what you were asked on

29       Monday as to what Mr Salmon was said to have said. At

30       lines 13 to 20, the questions were, particularly at

31       line 17:

32

33            [Mr Salmon] gave evidence that he expected

34            that you would have had some knowledge of

35            the $100,000 put forward by Mr Ellis.

36

37       And then the question was:

38

39            Now, is he wrong in that regard?

40

41       And you said he was. His evidence in fact is at page 5612,

42       if we could have that. At the very bottom of that page, at

43       line 44, the sequence went like this: Mr Salmon was asked

44       whether he appreciated that $100,000 was outside what the

45       church might contemplate, and he said yes. Then over the

46       page – you can read those answers to yourself. At line 10

47       he said he would have expected that there would have been

 

1       some consultation between the appropriate people in the

2       chancery. At line 15 he said he would assume that there

3       would have been some reference back to the archbishop.

4

5            At line 19, the actual question was:

6

7            So you would have expected the archbishop

8            to be involved?

9

10       Answer:

11

12            I would have expected that … there would

13            have been some knowledge of that figure [in

14            the archbishop].

15

16       Seeing how he actually put it, as to what he would have

17       expected and would have assumed, and so on, what is your

18       response to what he actually said in terms of the accuracy

19       of his expectation —

20       A.  Well, his expectations are not unreasonable, but, in

21       fact, it didn’t occur like that.

22

23       Q.  Thank you. Finally, as to Dr Casey, the question in

24       relation to his evidence was at page 6288. Do you see at

25       about line 6 what was put to you on Monday was that

26       Dr Casey had given evidence that it was the role of the

27       chancellor to discuss money matters in relation to Towards

28       Healing with you and to seek instructions, and then what

29       was put to you was, “Is Dr Casey wrong in such evidence?”

30       And you said he’s partly complete, and you can see the

31       answer you gave?

32       A.  I probably meant to say he’s partly correct, but it’s

33       the same result.

34

35       Q.  He’s partly correct, yes. If we could go then to what

36       Dr Casey in fact said, we’d need to have, if I may,

37       page 6077. At about line 8 and following, the flow of

38       these questions to Dr Casey was emerging from a series of

39       questions about whether he had been told about these

40       figures, $25,000, $30,000 or $100,000 and, if so, why he

41       would have been told them. At line 10, the question was:

42

43            … it’s very unlikely … you would have

44            been given information just for your own

45            information?

46

47       And his answer was, “No”, that is, “it’s not likely that

 

1       I would have been told something for my information”:

2

3            … because the role of the chancellor, as

4            I understood it, was to discuss these

5            matters with the cardinal, so it would not

6            be unusual that he would have done that …

7

8            Then the next question was to suggest to Dr Casey that

9       it equally would not have been unusual for him to keep you

10       informed, and Dr Casey said, “No, that would have been

11       unusual”, because it wasn’t his role. Then Dr Casey went

12       on:

13

14            The prime responsibility in Towards Healing

15            matters lies with the chancellor, and it’s

16            his role to follow these things up and seek

17            instructions from the cardinal.

18

19       Do you see that’s the sense of his series of answers there?

20       A.  I do.

21

22       Q.  It’s his understanding, as he put it, at line 14.

23       Then two pages on, page 6079, if we go to line 25, the

24       question to Dr Casey was:

25

26            … it is more than likely, is it not, that

27            the cardinal would have sought from you or

28            somebody else information about any

29            discussions about money up to the

30            facilitation?

31

32       What Dr Casey said was:

33

34            If he did seek advice on those matters,

35            I don’t think it would have been from me.

36

37       The next question:

38

39            Leaving aside you, you would accept, would

40            you not, that given the extent of the

41            cardinal’s involvement in Mr Ellis’s

42            complaint, he would have sought

43            information …

44

45       et cetera, and Dr Casey said:

46

47            Well, yes, and that information would

 

1            normally be provided to him by the

2            chancellor …

3

4       et cetera. In the light of what you can now see that

5       Dr Casey’s evidence actually was, what is your response to

6       his understanding and his expectation, as expressed?

7       A.  And his expectation is it’s more likely that it would

8       have – I think the answer is, one, only if it was brought

9       to my attention; and, secondly, only if it was outside the

10       norms according to which the chancellor conducted his

11       business.

12

13       Q.  What I want to suggest to you is this, in light of

14       what we’ve just looked at, in the case of Mr Davoren, his

15       evidence was as to his understanding; in the case of

16       Mr Salmon, his evidence was as to what he would have

17       expected; and in the case of Dr Casey, it was as he

18       understood it.

19       A.  Yes.

20

21       Q.  Is there any criticism by you of such understandings

22       or expectations on their part?

23       A.  No.

24

25       Q.  You’ve said that neither Mr Salmon nor Dr Casey in

26       fact conveyed to you any of the figures of $25,000 or

27       $30,000 or $100,000?

28       A.  Yes.

29

30       Q.  Is there any view in your mind that either of them

31       should have done so, given their positions?

32       A.  It certainly wasn’t their prime responsibility.

33

34       Q.  Looking back now, is one possibility in your mind that

35       they may have assumed that you knew?

36       A.  In thinking about it, I now think that is the best

37       explanation for that.

38

39       Q.  On the more substantive question of whether or not

40       Monsignor Rayner mentioned any of these three figures to

41       you – $25,000, $30,000 or $100,000 – could I ask you this:

42       if you had been told, hypothetically, that Mr Ellis had put

43       forward the figure of $100,000, what do you expect that you

44       would have done?

45       A.  I would have immediately gone to my small circle of

46       people with whom I discuss these things.

47

 

1       Q.  It’s likely, isn’t it, that you would have asked,

2       “Well, what was our offer? What did we offer?”

3       A.  Yes.

4

5       Q.  If you had done those things, upon this hypothesis,

6       you would have been told presumably, “Well, we first

7       offered $25,000, and then in the light of information about

8       him losing a $300,000 a year job, we raised that from

9       $25,000 to $30,000”, so it seems?

10       A.  Yes.

11

12       Q.  You’ve said to the Commission that the $25,000, in

13       your view, in Mr Ellis’s case was mean?

14       A.  Yes.

15

16       Q.  And that to raise it by only $5,000, in the context of

17       losing such a high-paying job was grotesque?

18       A.  Correct.

19

20       Q.  If you had been told those things, first of all, do

21       you think you would remember?

22       A.  Of course I would remember.

23

24       Q.  Secondly, if you had been told those things, would you

25       have done nothing and just let things roll on?

26       A.  No.

27

28       Q.  Would you have done something to try to improve the

29       position?

30       A.  We certainly would have talked about the $100,000 and

31       what can be done and whether the $25,000 or $30,000 was

32       sufficient and what consequences might follow from having

33       a way out of this what proved to be a debacle – of course

34       we would have talked about it and tried to reason out what

35       was the best thing to do.

36

37       Q.  On what may be a related note, you gave some

38       evidence – and Mr Skinner reminded you of it just a few

39       minutes ago – that Towards Healing payments were often in

40       the order of $20,000 or $30,000 or $40,000.

41       A.  Yes.

42

43       Q.  Was it your understanding that under Towards Healing

44       payments were always made on a lump-sum, once-and-for-all

45       basis?

46       A.  No, no.

47

 

1       Q.  Was it your understanding that financial assistance

2       under Towards Healing was sometimes offered and provided on

3       an ongoing or recurrent basis?

4       A.  That is correct.

5

6       Q.  Based on need from time to time?

7       A.  Sometimes recurrent need.

8

9       Q.  And Father Usher has said – you may know this – to the

10       Commission that he approaches it on the basis that the door

11       should never be closed?

12       A.  I accept that.

13

14       Q.  And is that your view as well?

15       A.  Sometimes I would have been tempted to close the door

16       a bit faster than him, but I never – well, I wasn’t

17       involved generally. Eventually we had reached hundreds and

18       hundreds of thousands and I felt we really had to discuss

19       together, you know, whether this goes on or whether we wind

20       it back.

21

22       Q.  But at any rate, you understood that individual

23       payments under Towards Healing might be relatively small

24       but that, over time, recurrently the eventual total can be

25       substantial?

26       A.  Yes, and that – those totals might have crept up on

27       all of us.

28

29       Q.  That being so, when some six months later, once the

30       litigation phase had been put under way, Mr Ellis made the

31       offer to settle for $750,000 —

32       A.  Mmm-hmm.

33

34       Q.  — having got to that point, that, by contrast, was

35       a one-off lump-sum proposal?

36       A.  That is correct.

37

38       Q.  Is it likely, looking back now, do you think, that at

39       that point, when the offer of $750,000 as a lump sum was

40       made, that you turned your mind back to what negotiations

41       may or may not have occurred in the previous Towards

42.       Healing context?

43 A. In Mr Ellis’s case?
44
45 Q. Yes.
46 A. Yes, I suppose I would have in general terms, yes.
47

 

1       Q.  You referred late yesterday to having had a general

2       feeling that there had been or there must have been too

3       much of a difference between the amounts of money, in terms

4       of why the facilitation didn’t succeed; do you remember

5       referring to that general feeling?

6       A.  Yes.

7

8       Q.  But you said you didn’t recall any actual discussion

9       to that effect?

10       A.  That is correct.

11

12       Q.  Was your general feeling simply an assumption that you

13       may have made?

14       A.  A not unreasonable assumption.

15

16       Q.  I want to turn to a different topic altogether, which

17       is the report of the national review panel – do you

18       remember that came in? That’s the three-person panel?

19       A.  Yes.

20

21       Q.  After Mr Landa.

22       A.  Yes.

23

24       Q.  You were taken to this. I’ll call the document up on

25       the screen, if you need it, but do you remember you were

26       taken yesterday, I think, to a number of recommendations

27       that the three-man national review panel made?

28       A.  Mmm-hmm, yes.

29

30       Q.  One of them was for an apology?

31       A.  Yes.

32

33       Q.  Another one was to consider another facilitation with

34       someone else?

35       A.  Yes.

36

37       Q.  First of all, at that time, you may recall the letters

38       that were emanating from the archdiocese were under the

39       hand of Bishop Porteous?

40       A.  Yes. I was overseas.

41

42       Q.  Yes, that’s what I wanted to ask you. When this

43       matter was alive – that is, the report of the review panel

44       and what should be done about it – Bishop Porteous was the

45       administrator; is that right?

46       A.  That is correct.

47

 

1       Q.  You were away?

2       A.  I was away.

3

4       Q.  Secondly, the recommendations of the national review

5       panel, may I ask you – you may or may not remember this –

6       were then the subject of advice, in turn, from Mr Landa; do

7       you remember that?

8       A.  Only generally.

9

10       Q.  Could we have, please, tab 144 on the screen. This is

11       dated 14 May 2005 and it’s a letter from Brother McDonald,

12       who was the head of the NCPS at the time, you may remember?

13       A.  Yes.

14

15       Q.  It’s a letter to Bishop Porteous, you being away. Do

16       you see in the first paragraph, towards the end of the

17       paragraph, he refers to the interim review panel’s report

18       having been the subject of discussion?

19       A.  What paragraph are we on?

20

21       Q.  In the first paragraph, just in the last line or two.

22       A.  Yes.

23

24       Q.  He mentions —

25       A.  The meeting with Landa and himself and Rayner and

26       Salmon?

27

28       Q.  Yes, in connection with the interim review panel’s

29       report.

30       A.  Yes.

31

32       Q.  Which was the national review panel of Mr Blake,

33       Mr Levy and Mr Gleeson?

34       A.  Yes.

35

36       Q.  Do you see in the third paragraph reference to

37       Mr Landa and Brother McDonald making it clear that they

38       believed that no apology should be proffered to Mr Ellis

39       while he was pursuing litigation, et cetera?

40       A.  Correct.

41

42       Q.  And that they – Mr Landa and Brother McDonald –

43       stressed that any contact by the archdiocese with Mr Ellis

44       should be through the solicitors?

45       A.  Yes.

46

47       Q.  And, lastly, that the same two – Mr Landa and

 

1       Brother McDonald – were equally definite on the view that

2       Towards Healing cannot be followed simultaneously with

3       litigation?

4       A.  Yes.

5

6       Q.  Sooner or later did it come to your notice, if you

7       recall, that that was the view that Mr Landa, as well as

8       Brother McDonald, had expressed?

9       A.  Yes.

10

11       Q.  I want to turn to this question of putting Mr Ellis to

12       proof on the issue of abuse. Do you have your own

13       statement with you in the witness box, cardinal?

14       A.  I do.

15

16       Q.  If you could turn to paragraph 115, do you have that

17       there?

18       A.  I do.

19

20       Q.  In paragraph 114, you refer to the notice disputing

21       facts which had been served in December 2004?

22       A.  Yes.

23

24       Q.  One of the facts being, as we can see from your

25       paragraph 113, the fact of the abuse?

26       A.  Yes.

27

28       Q.  Then in paragraph 115, you say:

29

30            I was made aware at some time during the

31            proceedings that the effect of “disputing”

32            such a fact is to “put the plaintiff to

33            proof “of that fact, rather than to deny

34            the fact.

35

36       Do you see that?

37       A.  Yes.

38

39       Q.  I just want to explore briefly the expression “at some

40       time” there, as to when that might have been. We know, and

41       you say in your statement, that the notice disputing the

42       fact was originally filed in December?

43       A.  Yes.

44

45       Q.  We know that as at 24 June 2005, six months later, the

46       topic was discussed with you in some way or other because

47       we have Dr Casey’s email of that date that you’ve been

 

1       asked about?

2       A.  Yes.

3

4       Q.  And we know that 24 June was about one month before

5       the hearing was to take place in the court?

6       A.  Yes.

7

8       Q.  Do you have any recollection of being aware at any

9       time before 24 June, the date of the Dr Casey email, that

10       the lawyers for the archdiocese had disputed the fact of

11       the abuse?

12       A.  I’m not clear on that at all. What I could conjecture

13       now is that I asked, “If we are putting him to the proof,

14       does it mean that we are denying that it took place?” And

15       my clear view was that we couldn’t deny it. My conjecture

16       now – I think it’s logical – that part is true, absolutely

17       true, that I – I don’t know for how long, for a long, long

18       time, I always felt that if an accusation had been

19       accepted, it could not be denied. It’s quite compatible

20       with the evidence that it was at that stage that I asked

21       whether putting to the proof was compatible with denying,

22       and I remember there was discussion about that issue, and

23       I was rightly or wrongly reassured on that point.

24

25       Q.  Is it your recollection now that probably that

26       discussion and that inquiry was at about the time of this

27       24 June —

28       A.  I could only say probably.

29

30       Q.  If we could have that on the screen briefly, please,

31       it’s tab 259. I won’t take long on this, cardinal. You’ve

32       been over this ground well and truly. Do you see in the

33       paragraph with the number 2 in front of it —

34       A.  Yes.

35

36       Q.  — Dr Casey said:

37

38            His Eminence asked me to check that the

39            Towards Healing assessment had in fact

40            found in favour of Ellis’s allegations.

41

42       So it’s clear, I suggest, that you were asking Dr Casey to

43       check, basically, whether Mr Eccleston had, indeed, found

44       in favour of Mr Ellis?

45       A.  That’s correct.

46

47       Q.  Is it your best recollection now that the likely

 

1       reason why you asked for that to be done was the reason

2       you’ve just been describing?

3       A.  Yes.

4

5       Q.  If you still have paragraph 115 of your statement

6       there, again is it likely that it is to this point in

7       time – namely, around about 24 June – that your

8       paragraph 115 is referring?

9       A.  Yes.

10

11       Q.  As a matter of, I hope, detail, you did say in one

12       answer yesterday that your discussion or insistence on the

13       point of not denying was some time before the formal

14       proceedings commenced; do you remember using that

15       phraseology?

16       A.  Yes, and I meant that was before the court case

17       commenced.

18

19       Q.  Do you mean the court hearing?

20       A.  Yes.

21

22       Q.  That is to say, for the avoidance of doubt, you didn’t

23       mean, I take it, before the statement of claim was ever

24       filed in the first place?

25       A.  No, I didn’t.

26

27       Q.  It’s clear from the note that you asked Dr Casey to

28       check what Eccleston had actually said at that review?

29       A.  Yes.

30

31       Q.  Do you have any recollection of whether Dr Casey

32       reported back to you with respect to whatever checking he

33       had done?

34       A.  I’m sure he would have.

35

36       Q.  Yes, but do you have any recollection of it?

37       A.  Not particularly.

38

39       Q.  And, secondly, do you have any recollection of what,

40       indeed, he said in any such report as to his inquiries?

41       A.  The specific answer to that is no, but Dr Casey also

42       never, to my knowledge or understanding, at any stage

43       disputed Eccleston’s verdict.

44

45       Q.  Then on that, looking at the email itself that’s still

46       on the screen, tab 259, do you see that at the end of that

47       paragraph starting with 2, just before the one starting

 

1       with 3 —

2       A.  Yes.

3

4       Q.  — there is the paragraph where Dr Casey arrives at

5       the point where he says – and you’ve been asked about this:

6

7            … this information places us in

8            a position where we can say that the

9            Archdiocese has never accepted …

10

11       et cetera?

12       A.  Yes.

13

14       Q.  Do you have any recollection of Dr Casey saying to you

15       something to that effect?

16       A.  No, not at all.

17

18       Q.  Was it thereafter your understanding, whether from

19       Dr Casey or from some other source, that the legal advice

20       was that to dispute, as distinct from deny, was legally

21       proper?

22       A.  I can’t remember precisely when that was first made,

23       but that was a point that was made and discussed at some

24       little length and I accepted.

25

26       THE CHAIR:  Q.  On reflection now, would you see

27       a difference between disputing and denying something?

28       A.  There is certainly a logical difference, your Honour.

29       The question is whether accepting such a distinction is

30       legally or morally appropriate.

31

32       Q.  What’s the distinction that you see logically?

33       A.  Well, it’s like the presumption of innocence, if

34       I could make a rough sort of parallel. In one case, you’re

35       denying that something has happened. In another case,

36       you’re saying “It might have and I would like it

37       established.”

38

39       Q.  So disputing something is equivalent to saying, “You

40       prove it”; is that what you’re saying?

41       A.  Well, it’s equivalent at least to saying it would be

42       established on the balance of probabilities.

43

44       MR GRAY:  Q.  I want to turn to a related point briefly.

45       Have you seen or been made aware of the evidence of

46       Mr McCann in the Royal Commission about this issue?

47       A.  Generally.

 

1

2       Q.  I’m paraphrasing his evidence, but would you assume

3       that his evidence was to the effect that he recommended

4       a tactic, which was to put the fact of the abuse into

5       dispute – that is, to formally dispute it – not because

6       that particular issue was relevant on the limitation point

7       but only so as to provide a platform from which questions

8       could be asked that were relevant to the limitation

9       argument?

10       A.  I understand that legal argument.

11

12       Q.  Were you aware of that then, were you aware if that

13       was a tactic?

14       A.  I can’t recall whether I was aware of that particular

15       aspect of it then or not.

16

17       Q.  Accepting that, as a matter of logic looking at it

18       now, if that was the tactic that was being deployed by the

19       lawyers, logically it would have made no difference that

20       other evidence might become available, such as the

21       affidavit from Mr [SA] or the material from Mrs Penton,

22       which made it even more probable than it already was that

23       Mr Ellis was telling the truth?

24       A.  Yes.

25

26       Q.  Were you aware of any such thinking or any such tactic

27       at the time?

28       A.  I wasn’t aware of anything in such a – described as

29       a tactic or that I perceived as simply a tactic.

30

31       Q.  Next, and almost last, cardinal, I just need to ask

32       you some questions about the two emails relating to

33       Mrs Penton’s observations. The first, if we could have it

34       on the screen, is tab 282. You’ve been asked about this

35       before and you’re familiar with it now, as we speak in

36       2014?

37       A.  Yes.

38

39       Q.  In this one, which is 8 August, the author describes

40       what Mrs Penton said about Father Duggan going to her house

41       with Mr Ellis on a few occasions and the talk about love

42       and so on and so forth; you’ve seen all that before?

43       A.  Yes.

44

45       Q.  There is also a second, a different email, which is at

46       tab 271 – in fact, a first email in point of time, a

47       previous email, 28 July. This one is from Mr Dalzell to

 

1       two barristers and to someone from Corrs. In the

2       second-last paragraph, there is a reference to Mrs Penton

3       again. Do you see that?

4       A.  Yes.

5

6       Q.  In this one, although there’s a deal of overlap, the

7       details are different, as you see?

8       A.  Yes.

9

10       Q.  About asserting that “Ellis used to bash Duggan” and

11       “force himself upon the aging priest”, et cetera?

12       A.  Yes.

13

14       Q.  Until preparing for the Royal Commission in recent

15       times, had you ever seen or been told of such a thing?

16       A.  No.

17

18       Q.  If you had been – that is, bashing and forcing

19       himself, and so on – do you think you would have remembered

20       it?

21       A.  Certainly.

22

23       Q.  Yesterday, I think it was, or whenever you were here

24       last, it was put to you that Dr Casey had given evidence

25       that he, Dr Casey, knew something along the lines of the

26       second paragraph of the other email – not this one, but the

27       other one that we just looked at a moment ago, that is, the

28       one at tab 282. In fact, and I won’t tarry on this,

29       because the transcript will be able to be checked,

30       Dr Casey’s evidence was a little bit different, and I just

31       want to acquaint you with this, cardinal.

32

33            First of all, if we could have Dr Casey’s statement at

34       paragraph 137, this was what Dr Casey had to say on this

35       subject in his actual statement to the Commission, namely,

36       that he had been shown two emails, one of 28 July and one

37       of 8 August, being the two we’ve just looked at, and said

38       he did not see either of them at the time. He said he had

39       a recollection that at some stage Mr Dalzell mentioned to

40       him in a telephone conversation that someone had come

41       forward saying that he or she had seen Mr Ellis and

42       Father Duggan together. Do you see that?

43       A.  I do.

44

45       Q.  Then when he was in the witness box, Dr Casey gave

46       some evidence at page 6140 – I won’t take you to all of

47       this, but others can check it as necessary. At page 6140,

 

1       what was put to Dr Casey, you can see, at line 19 was the

2       28 July email, which is the one about bashing Father Duggan

3       and behaving forcefully and so on.

4       A.  Yes.

5

6       Q.  So when we scroll down to the next page, 6141,

7       line 12, what Dr Casey said in the evidence was:

8

9            I remember Mr Dalzell mentioning something

10            along the lines of the second-last

11            paragraph in this email –

12

13       being the first one, the “forceful behaviour” one –

14

15            to me over the phone.

16

17            Q.  Did you inform the cardinal of this

18            significant step?

19            A.  I don’t have a direct recall, but I’m

20            sure I did.

21

22       Pausing there. You have no recollection of ever being told

23       anything along the lines of that first email about the

24       forceful conduct and bashing and so on?

25       A.  No. No recollection whatsoever of any “interesting

26       detail” or of the substance.

27

28       Q.  Then as to the second one, which is tab 282, which is

29       the one of 8 August, which is broadly covering similar

30       territory but without the reference to bashing or

31       forcefulness, first of all, we know from your second

32       statement that you were overseas in Germany for World Youth

33       Day from 4 August to 24 August. Is that right?

34       A.  Yes, and the year we’re in is?

35

36       Q.  2005.

37       A.  That’s correct.

38

39       Q.  So the second email is dated 8 August.

40       A.  Yes.

41

42       Q.  Which is plainly in the middle of the period when you

43       were in Germany?

44       A.  Yes.

45

46       Q.  Do you have any recollection of any conversation at

47       all in relation to Mr Ellis while you were in Germany?

 

1       A.  No, I don’t. There might have been, but I don’t have

2       any recollection.

3

4       Q.  Did the substance of either of these two emails come

5       to your notice at any time prior to preparing for the Royal

6       Commission?

7       A.  No.

8

9       Q.  Then the last question, cardinal – or last topic. If

10       you have your own statement there —

11       A.  I do.

12

13       Q.  If you wouldn’t mind turning to paragraph 155, this is

14       the paragraph where you are reflecting on the course of the

15       litigation and you list some steps in the litigation which,

16       as a priest, now cause you some concern. Do you remember

17       that?

18       A.  I do.

19

20       Q.  Yesterday you were taken to (a), (b) and (c) and you

21       agreed that, yes, they did cause you concern. Then when

22       senior counsel assisting got to (d), which is listed as one

23       of the things that caused you concern, the question that

24       was asked was about the material that starts in about the

25       middle of that paragraph, in particular, the sentence

26       beginning, “Whatever position was taken by the lawyers”,

27       et cetera; you were asked questions about that?

28       A.  Yes.

29

30       Q.  The question was whether that – namely, position taken

31       by the lawyers – was what caused you concern. Is the

32       aspect that caused you concern what is set out in the first

33       four or five lines of paragraph (d)? Is that the aspect

34       that caused you concern that you were referring to there?

35       A.  Yes.

36

37       Q.  Then as to the last sentence of paragraph 155(d),

38       after saying that you welcome clarification of the point –

39       namely, your view that the church in Australia should be

40       able to be sued in cases of this kind – the last sentence

41       says:

42

43            In every case where such an action

44            succeeds, the resources of the Church

45            should be available to the extent necessary

46            to meet any judgment …

47

 

1       A.  Yes.

2

3       Q.  I just want to take you to two particular sets of

4       answers that you gave to his Honour yesterday so that you

5       are reminded of them. If they could be on the screen, the

6       first is at page 6562. Do you see at line 27 it’s the

7       Chair, namely his Honour, asking some questions?

8       A.  Yes.

9

10       Q.  If we could scroll down a bit further, he’s picking up

11       the sentence that I just mentioned, the last sentence of

12       your paragraph 155(d). What I want to invite you to read

13       to yourself are those questions that we can see there,

14       continuing over to line 20 on the next page, taking what

15       time you need.

16       A.  Yes.

17

18       Q.  We need to scroll a bit further to the next page.

19       A.  Yes.

20

21       Q.  And keep going still further, please.

22       A.  Yes.

23

24       Q.  Then at line 22, Ms Furness resumes.

25       A.  Yes.

26

27       Q.  So you’ve had a chance to read those questions and

28       answers to his Honour?

29       A.  Yes.

30

31       Q.  Then keeping that in mind, his Honour then returned to

32       the subject about two pages later, on page 6564. Could

33       I ask you to look at the question and answer from line 32

34       to line 43.

35       A.  Yes, I see that.

36

37       Q.  In giving those various answers to his Honour – that

38       one there that’s on the screen and the half dozen or so on

39       the couple of pages back that I just took you to – were you

40       there expressing your own personal view?

41       A.  Yes, that is my personal view.

42

43       MR GRAY:  I have nothing further, thank you.

44

45       THE CHAIR:  Mr Whitlam?

46

47       MR WHITLAM:  No questions.

 

1

2       THE CHAIR:  Ms Furness?

3

4       MS FURNESS:  Nothing further for the cardinal.

5

6       THE CHAIR:  Thank you, Cardinal Pell. I thank you for

7       coming and I formally excuse you from these proceedings,

8       but do you understand that we will need to look at the

9       Melbourne situation later in the work of the Commission?

10

11       THE WITNESS:  I do, your Honour.

12

13       THE CHAIR:  Do I assume that at a mutually convenient time

14       we will be able to talk to you again about those matters?

15

16       THE WITNESS:  I would certainly endeavour to do that, to

17       cooperate fully.

18

19       THE CHAIR:  I think we might at an early date try to make

20       contact with whoever is responsible for your diary going

21       forward, to make sure that we can reach a mutually

22       convenient date. Do you understand?

23

24       THE WITNESS:  Thank you. Thank you. Good. Might I say

25       a few words in conclusion, have permission to, please?

26

27       THE CHAIR:  Unusual.

28

29       THE WITNESS:  Only with your permission, your Honour.

30

31       THE CHAIR:  Well, it’s unusual. Mr Gray, I would entrust

32       the cardinal’s evidence to you.

33

34       MR GRAY:  Yes, your Honour, I know what it is that the

35       cardinal wishes to say.

36

37       THE CHAIR:  Maybe with leave you should ask some

38       questions.

39

40            Cardinal, I mean no disrespect, but everyone should be

41       treated the same in giving evidence before the Commission.

42

43       THE WITNESS:  I understand that.

44

45       MR GRAY:  Perhaps if I may do it formally in that way,

46       then, your Honour, with leave, that I’m grateful for.

47

 

1       THE CHAIR:  Yes.

2

3       MR GRAY:  Q.  Cardinal, in the light of all the evidence

4       that you have given yourself and the evidence of which

5       you’ve become aware, both in the course of the recent weeks

6       of hearing and in preparation for them, are there some

7       final reflections that you have to offer on what you now

8       know?

9       A.  Yes. As former archbishop and speaking personally,

10       I would want to say to Mr Ellis that we failed in many

11       ways, some ways inadvertently, in our moral and pastoral

12       responsibilities to him.

13

14            I want to acknowledge his suffering and the impact of

15       this terrible affair on his life. As the then archbishop,

16       I have to take ultimate responsibility, and this I do.

17

18            At the end of this gruelling appearance for both of us

19       at this Royal Commission, I want publicly to say sorry to

20       him for the hurt caused him by the mistakes made and

21       admitted by me and some of my archdiocesan personnel during

22       the course of the Towards Healing process and litigation.

23

24       THE CHAIR:  Thank you, cardinal. Again, you are formally

25       excused.

26

27       <THE WITNESS WITHDREW

28

29       THE CHAIR:  Yes, Ms Furness.

30

31       MS FURNESS:  Your Honour, as your Honour and Commissioners

32       are aware, there has been some issue in respect of the

33       precise number of priests incardinated and the number of

34       priests against whom complaints have been made, and

35       tendered earlier today were documents relevant to the

36       Commission’s understanding of that position.

37

38            I understand that the archdiocese have different data

39       or have drawn conclusions in a different way and that there

40       is a schedule of some sort that they wish to have tendered.

41       I also understand that that schedule needs to be redacted

42       and therefore can’t be tendered in the formal sense today.

43       Perhaps we should give it a number, your Honour, and then

44       the actual document in its redacted form will become part

45       of the evidence.

46

47       THE CHAIR:  What do I call the document, Mr Gray – just

 

1       a schedule, is it, schedule of complainants?

2

3       MR GRAY:  It’s a schedule of relevant priests with

4       a covering email explaining same.

5

6       THE CHAIR:  It’s priests in respect of whom there’s an

7       allegation, is it?

8

9       MR GRAY:  Yes, in relation to the Sydney Archdiocese, yes.

10

11       THE CHAIR:  Yes. All right, we’ll give it the number

12       exhibit 8-30.

13

14       EXHIBIT #8-30 SCHEDULE OF RELEVANT PRIESTS WITH A COVERING

15       EMAIL EXPLAINING SAME

16

17       MS FURNESS:  Thank you, your Honour. What remains in this

18       case study is to seek a direction that the written

19       submissions of those assisting the Royal Commission be

20       provided to each person or entity with leave to appear and

21       any unrepresented witness against whom adverse findings are

22       submitted to be available by 23 May 2014, submissions in

23       reply by 23 June 2014 and, to the extent necessary, oral

24       submissions be heard on 27 June 2014.

25

26       THE CHAIR:  Has that been reduced to writing?

27

28       MS FURNESS:  It has, but it needs to be amended.

29

30       THE CHAIR:  I will make a direction in those terms

31       formally in due course.

32

33       MS FURNESS:  Thank you.

34

35       THE CHAIR:  What about any control over the publication?

36

37       MS FURNESS:  Yes, I was coming to that, your Honour. The

38       next is a direction not to publish the written submissions

39       made until those submissions are the subject of an oral

40       hearing.

41

42       THE CHAIR:  If you include that in the written document,

43       I will make that direction.

44

45       MS FURNESS:  Thank you, your Honour. That concludes case

46       study number 8.

47

 

1       THE CHAIR:  Thank you. If it be necessary, there will be,

2       as Ms Furness said, an opportunity for oral submissions.

3

4            Can I make plain that I don’t expect that the report

5       in relation to the Towards Healing component of our work

6       will be completed until after the Melbourne Response has

7       been considered, which I hope will be later this year.

8

9       MS FURNESS:  Thank you, your Honour.

10

11       THE CHAIR:  Otherwise we will adjourn until 10 o’clock

12       tomorrow for The Salvation Army.

13

14       AT 4.10PM THE COMMISSION WAS ADJOURNED ACCORDINGLY

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