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?
|
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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