. 20 / 08 / 2014 ( C 40 ) Transcript produced by Merrill Corporation C 4286 ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES TO CHILD SEXUAL ABUSE Public Hearing - Case Study 16 (Day C040) Court 3.3, County Court of Victoria 250 William Street, Melbourne On Wednesday, 20 August 2014 at 10.00am Before the Chair: Justice Peter McClellan AM Before Commissioners : Professor Helen Milroy Mr Andrew Murray Counsel Assisting: Ms Gail Furness SC Mr Angus Stewart
Transcript
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ROYAL COMMISSION INTO INSTITUTIONALRESPONSES TO CHILD SEXUAL ABUSE
Public Hearing - Case Study 16(Day C040)
Court 3.3, County Court of Victoria250 William Street, Melbourne
On Wednesday, 20 August 2014 at 10.00am
Before the Chair: Justice Peter McClellan AMBefore Commissioners: Professor Helen Milroy
Mr Andrew Murray
Counsel Assisting: Ms Gail Furness SCMr Angus Stewart
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THE CHAIR: Ms Furness, I understand that it is proposedthat Cardinal Pell will give evidence tomorrow afternoon byvideolink at 4 o'clock; is that right?
MS FURNESS: That's right, Your Honour. 4 pm our time isI understand 8 am the Cardinal's time in Rome.
THE CHAIR: I don't know whether you have had the chanceto discuss with your colleagues the timing for this, but wewill need to have some idea from all of you how long youbelieve you might need with Cardinal Pell. It will be8 o'clock in the morning in Rome, but given that we aresitting all day tomorrow, my sense of it is that we shouldprobably aim to at least finish tomorrow at about8 o'clock. I don't know whether that would allow enoughtime for everyone to ask Cardinal Pell what they want toask him, but can I ask that counsel might discuss thematter and perhaps after morning tea give me someindication as to whether or not four hours - there willhave to be a break, I would imagine, for 20 minutes or soin the middle of that - would be sufficient or whether wewould need to plan for a second occasion.
MS FURNESS: Your Honour, I have had the opportunity tospeak to a number of those at the Bar table and I thinksome certainly are in the position to indicate toYour Honour now and I only haven't heard from thoserepresenting the Archdiocese of Melbourne and the Truth,Justice and Healing Council.
THE CHAIR: I wonder whether you might talk to each otherin morning tea and just let me know what the expectationis.
MS FURNESS: Certainly.
THE CHAIR: No one is going to be bound to what they say,but we need to have some understanding so we canappropriately plan here, but also that those in Rome knowwhat can be expected.
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<EXAMINATION BY MS FURNESS:
MS FURNESS: Q. Mr O'Callaghan, you were asked toconsider and provide various pieces of informationovernight. I understand from those representing you thatyou are not yet in a position to provide us with figuresthat they are comfortable are accurate?A. Yes, that's so. I rely upon others to do thestatistical work and I would seek the indulgence ofproviding that to you fairly shortly in a documentary formwhich you can consider and if you require anything to bedone about it, we will do it.
Q. Thank you. It may be, Mr O'Callaghan, that we needyou to return depending upon the material?A. Certainly.
Q. If that's understood?A. Yes.
Q. When we adjourned yesterday, Mr O'Callaghan, I wasasking you about Mr Leder's document which appears at tab190, and we might have that on the screen. You indicatedthat while you couldn't then help us with how it came aboutthat you gave the information in that second paragraph toMr Leder, you did tell us with the assistance of anunredacted copy that the information was obtained by youduring the course of investigating a complaint made by theO'Donnell victim whose name is redacted; is that right?A. That is correct. Overnight I have endeavoured to findany trace of my knowledge of that conversation andI haven't, and I have no recollection of it. But I did seeon the file a police report which contains that extract,which is not in respect of the complaint that I was dealingwith, but in respect of another complaint.
Q. But you are satisfied that the information that's setout in that paragraph was provided by you and your sourcewas a previous O'Donnell complainant?A. Yes, that's - well, I can't be. I have norecollection of providing it, but I will have to acceptthat must have happened.
Q. Thank you. If we can just turn to the previousdocument, which is 189. No doubt Mr Leder will be askedabout these matters as well, but this is a file note.Perhaps if we could turn to the next page. This is a file
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note in Mr Leder's handwriting which we asked him totranscribe for us, which he did, and this is thetranscribed note he provided. Do you see what appears fromthis file note is that Kevin Lyons contacted Mr Leder andI think you indicated that you understood Mr Lyons wasjunior counsel for the various defendants in the litigationbrought by the Fosters?A. Yes.
Q. And then on 30 November there's reference to whatappears to be a telephone call to you?A. Yes.
Q. And then various matters set out thereunder?A. Yes. I have no doubt that, because I became aware ofthat, that Mr Leder certainly must have rung me, but I haveno recollection of that conversation.
Q. And you have no record, I take it, of having soughtfrom the complainant, the O'Donnell victim, any consent forproviding information obtained during the course of theinvestigation of his complaint to Mr Leder?A. No.
Q. No?A. No.
Q. Thank you. In accordance with your terms andconditions of appointment you were to keep all mattersconfidential and to consider them confidential andprivileged, were you not?A. Yes.
Q. In those circumstances why did you provide thisinformation to Mr Leder?A. I have no explanation.
Q. I beg your pardon?A. I have no explanation.
Q. Can I suggest to you, Mr O'Callaghan, that you shouldnot have, consistent with your appointment?A. I take that suggestion.
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Q. Turning to tab 225, we are getting to the modern day,Mr O'Callaghan, and we have emails rather than facsimiles,and do you see at the bottom of this page the first of theemails is from what appears to be a journalist at theHerald-Sun to James O'Farrell?A. Yes, I see that.
Q. And James O'Farrell, we can tell from the later email,is the director of Catholic communications for the CatholicArchdiocese of Melbourne?A. Yes.
Q. And it appears that the journalist is seeking fromMr O'Farrell answers to various questions in relation toaspects of the Fosters' litigation?A. Apparently.
Q. You have read this as part of preparing to giveevidence, Mr O'Callaghan?A. I think I have that document, but I can't recalllooking at it recently.
Q. So you accept that there seems to be a letter from thejournalist to Mr O'Farrell and then if we can turn to thenext couple of pages you see there's a list of questionsset out and some answers below?A. Yes.
Q. If we can then turn to tab 224, Ms Stefanile was yoursecretary, was she, at the time?A. She was and she is.
Q. What this document appears to be, can I suggest,Mr O'Callaghan, is your suggested answers to the questionsby the journalist; do you accept that?A. Yes.
Q. In relation to the second matter, do you see that withparagraph 2?A. Yes.
Q. If we can just scroll up so that's on the screen,that's in relation to the litigation that was taken by theFosters and defended by the Archdiocese in the firstinstance; do you understand that?A. Yes.
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Q. You there refer to, "In its defence the Church did notadmit" - in quotes - "that the abuse took place inprecisely the manner alleged in the statement of claim"?A. Yes.
Q. Firstly, can I ask you, Mr O'Callaghan, why you wereproviding to the director of Catholic communications aswell as to Mr Leder suggested answers to a journalist'squestions?A. I believe that there was also some media referring tome and I was - I don't deal with that, I don't think, here,but I was giving my explanation as to what I thought wasthe position and how it should be described.
Q. But in this case the questions were not related toyour conduct, were they?A. No, certainly not in this document.
Q. I beg your pardon?A. Certainly not in this document.
Q. Thank you. And by reference to paragraph 2 you areproviding draft or suggested answers to a question inrelation to the litigation, are you not?A. Yes.
Q. That was not your business, was it, Mr O'Callaghan?A. Strictly speaking, no.
Q. Why did you?A. I thought it was reasonable to do so.
Q. I beg your pardon?A. I thought it was reasonable to do so.
Q. Well, you understood that the purpose of creating theoffice of Independent Commissioner and indeed calling thatperson Independent Commissioner was that it was intendedthat they be quite separate from the Archdiocese?A. Indeed, but here we have a situation where there'sgreat media interest in these matters and I was, if not inthis document, referred to in other documents.
Q. We are talking about this document, you understand,Mr O'Callaghan?A. Yes, I accept what you say.
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Q. I beg your pardon?A. I accept what you say.
Q. That it wasn't your business?A. Not strictly speaking, no.
Q. Not speaking in any sense, Mr O'Callaghan?A. Not in any sense in relation to an obligation to giveit.
Q. Why did you involve yourself in providing to theArchdiocese of Melbourne suggested answers in respect ofthe litigation in circumstances where you had no properrole in the litigation?A. My answer to that is I was, not in this document, butin other documents or other media reports referred to andinsofar as I could assist in providing what I regarded asthe correct response to that, I did.
Q. Just coming down to answer 12 on that page, that's inrespect of going to the police. What you note there inrelation to you is that, "The Independent Commissioneralways informs victims they have the right to go to thepolice and he encourages the exercise of that right." Doyou see that?A. Yes.
Q. The word "encourages" the exercise of that right wasin place from the beginning of the Melbourne Response,wasn't it?A. Yes, prefaced by "appropriately encourage".
Q. Yes, and I think we dealt with that yesterday that"appropriately" means in circumstances not where thecomplainant has clearly indicated they don't want to go tothe police?A. Yes.
Q. Thank you. Now can we turn to Mr Hersbach and yourinvolvement with him. Perhaps if we could first go to tab238. This is a letter from you to him dated 20 April 2006?A. Yes.
Q. Enclosing a copy of the transcript of the interview?A. Yes.
Q. And referring in the paragraph on the screen at the
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bottom of the screen that he or they "have a continuing andunfettered right to report the matter to the police"?A. Yes.
Q. And saying that you "encourage the exercise of thatright"?A. Yes.
Q. And then you continue, if we can scroll up:
In your case however with respect to theunsurprising haziness of your memory therewould not appear to be much point in yourtaking the matter to the police.
Do you see that?A. Yes.
Q. Firstly, Mr O'Callaghan, why did you take it uponyourself as part of your role to give advice tocomplainants as to your view of the prospects of any policeaction?A. I considered I had a duty to inform a victim of allthe parameters and combinations which could arise and I wasreferring there to his statements to me that justified hishazy memory. I pointed that out and then I said, "It's amatter for you," et cetera.
Q. Your job was not to just be neutral but to encouragecomplainants to go to the police; that's right?A. Yes, to encourage them to go to the police. But ifI was of or held a reasonable opinion that they may havedifficulty in sustaining that approach to the policeI thought it appropriate to indicate so.
Q. In your varied discussions with the police firstly in1996 and then in 2009 and also in 2011 there is noreference to the material that was generated from thosediscussions as to your, as you call it, duty or obligationto inform them as to, that is complainants, as to your viewof what might happen if they went to the police, is there?A. No, there's not. But it's a duty that I consideredI was subject to.
Q. And that duty was not based on anything in your termsand conditions of appointment?A. No.
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Q. Nor based on any discussions with the police?A. No, it was based upon what I saw my position asrecommending a course of action and if I recommended acourse of action without referring to genuine possibilitiesof what might occur, I would have been remiss.
Q. But your job wasn't to recommend anything except tothe Archdiocese in respect of an active ministry priest?A. If a victim came before me pursuant to the terms andconditions of appointment, but I have in my apprehension aduty to act in a responsible and careful way and notnegligently. For instance, if I failed to bring to theattention of a victim what might or might not happen, hecould well or she could well complain that I had anobligation to do so.
Q. Your obligation was to encourage the exercise of thatright, wasn't it?A. Yes.
Q. That was the extent of your obligation, I suggest toyou, Mr O'Callaghan?A. Well, that's where, if I might say, you and I differ.
Q. And in terms of your letter to Mr Hersbach you firstof all said, "There would not appear to be much point inyour taking the matter to the police" because of hismemory?A. Yes.
Q. Then you say in the last paragraph, "Assuming that youare not going to take the matter to the police, I adviseyou that I am satisfied" that he was a victim of sexualabuse. Now, that advice you gave to him was not and couldnot be based on whether or not he went to the police; thatadvice was independent of him going to the police, was itnot?A. It was on the assumption that he wasn't going to thepolice.
Q. But even if he went to the police, your job was tostill indicate to him whether or not you were satisfied hewas a victim of abuse?A. Yes, but if he went to the police I would take nofurther steps.
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Q. Yes, you would take no further steps in furtherance ofyour finding, but you wouldn't take any further steps interms of making the finding, would you?A. Yes, I would.
Q. So you only made the finding in relation toMr Hersbach because you assumed, given your advice to him,that there wouldn't appear to be much point --A. I indicated what my finding would be and thedistinction that I was making it was a finding of sexualabuse as defined, i.e. that that conduct of masturbating inhis presence did obviously constitute a breach of theproper priestly obligations to act in a proper manner.
Q. If we can turn then to tab 232?A. Can I just add to that?
Q. Certainly?A. Had Mr Hersbach told me when I saw him what nowappears in his statement, I would have had an entirelydifferent attitude; that is, in his statement he statesthat he was abused on a number of occasions and the lastone was when in Rome and it's on the - and I would have hada completely different consideration of that had he told meat the time about going to the police, about the point ofgoing to the police.
Q. You would have thought that there were betterprospects; is that the case?A. Absolutely.
Q. You don't consider it is the role of the police totell a complainant what their prospects are and what thepolice may or may not do with it rather than you?A. We're talking about - if you are talking about --
Q. I'm talking about in any event, Mr O'Callaghan, with acomplainant. Isn't it the role of the police to talk tocomplainants about what they can and can't do for them andwhat is likely to happen?A. That would be the role of the police if the persongoes to the police.
Q. Yes, and if the person is told that the police arebest placed to tell them prospects, then it might be morelikely that they go there. What do you say to that?A. Yes, certainly.
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Q. The letter on the screen is dated March 1997. Sothat's some nine years earlier; do you see that?A. Yes.
Q. And this is from you to the then Vicar General inrelation to Father Rubeo?A. Yes.
Q. You were reporting to the Archbishop in respect ofwhat should be done, if I can put it in those terms, inrespect of Father Rubeo's ministry?A. Yes.
Q. And this is the sort of recommendation that you wereasked to make pursuant to your terms and conditions ofappointment; isn't that right?A. Would you just scroll up a bit so I can --
Q. Certainly. We can perhaps give you a hard copy ifthat's easier?A. No, that's all right.
Q. If we can keep scrolling?A. Yes.
Q. And then over to the second page?A. Yes, that's the final paragraph or the penultimateparagraph I think is:
I have been asked to advise whether itwould be appropriate to restore FatherRubeo's priestly faculties such that hewould be available for supply work.
And I go on to recommend --
Q. Yes, perhaps if we could keep scrolling?A. Yes.
Q. If we can stop there. And you advise that it wouldnot be appropriate to return Father Rubeo even to a limitedministry?A. Yes.
Q. And you are asked, given that you were advised that hewished to retire, whether such retirement should impinge
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upon your investigations or findings, and you said it wouldnot?A. Yes. I said:
I consider there is utility in acceptingFather Rubeo's retirement, but subject tohis resigning from all other offices (ifany) held by him at this time.
Q. Thank you. And you understand that subsequentlyFather Rubeo, as he then was, resigned from any canonicaloffice that he still held?A. Yes, he did.
Q. You would have understood during your work asIndependent Commissioner that Catholic Church InsuranceLimited played a role in making payments of ex gratiapayments?A. I became aware. I must say I think it was some timeafter I was in my role that I became aware of insurance,which was certainly not my considerations.
Q. No, and you didn't have anything to do with theinsurers, I take it?A. Nothing at all.
Q. Just to be fair to you, Mr O'Callaghan, can I show youtab 258. This is a claim summary in relation to FatherRubeo and Mr Hersbach; do you see that?A. Yes.
Q. Dated - it's undated so far, but no doubt it willbecome dated if we continue. Dated March 2008. The claimsummary refers to the medical report and then refers toyour investigation?A. Yes, I'm coming to that, am I? Yes.
Q. You see that's in the middle of the page now?A. Yes.
Q. It refers in the final sentence to "the complainanthas a very vague memory of all this", which is consistentwith the statement you made in the letter to him?A. Yes.
Q. The panel recommendation, with which you were notinvolved?
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A. Yes.
Q. And then underneath there's other relevantinformation, if we can have that whole paragraph on thescreen. Then if we could turn to the second page, this isMr Rolls, who was - and I'm sure I will be corrected ifI am wrong - a director of or certainly a senior personwithin CCI at the time. He refers there to:
I believe this matter highlights adifficulty we face with the "Melbournescheme". There are very seldom independentmedical reports and we rely upon Carelinkwho appear more than ready to attribute theailments with which the claimant presentsto the alleged abuse.
Just stopping there, are you able to make any comment inrespect of that opinion?A. No, I understand it. I have nothing to say about it.It seems to be suggesting that reports are a bit generous.
Q. Yes. Not a view you share or shared?A. Certainly not. Certainly not. I have seen manyreports from Carelink which have been submitted to theCompensation Panel and I have considered them to be verywell constructed and certainly laying down the facts infavour of the victim.
Q. Thank you. He then refers to your investigation andyour interviews?A. Yes.
Q. Can you read that paragraph?A.
Further, unless the police have beeninvolved, there is no investigation otherthan the pitiful interviews conducted bythe Independent Commissioner which areseldom more than an account of the eventsas given by the claimant, accompanied byanecdotal irrelevancies offered by theCommissioner himself that are designed tosupport the story being told. I would liketo find that following these typicalinterviews the Commissioner engaged in some
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form of investigative activity but I do notbelieve this is the case. Certainly thereare no reports in the files of Corrs tosupport that suggestion.
Well, I have read that. I think this is the first timeI have ever seen it. I reject it.
Q. It's the case, isn't it, that you kept your own files?A. Yes.
Q. So you wouldn't expect the files of Corrs to containthe results of your investigative work, is that right?A. I would expect Corrs' files to contain the report - myreport to the Compensation Panel, but certainly not stepsin the process of the investigation. I might say I haveknown Mr Rolls and have considerable respect for him, buthe didn't put this to me.
Q. Can I turn to [AFA]?A. I'm sorry?
Q. [AFA], who was the third person we heard evidence fromon Monday. If we look at first of all tab 268. This isthe transcript, Mr O'Callaghan, of your interview with[AFA]?A. Yes.
Q. There is reference in relation to the police, startingwith - if we look at the bottom of the first page, there'sreference to Father Michael Glennon?A. Yes.
Q. Father Michael Glennon was someone known to you beforeyou saw [AFA] in February 2011, I take it?A. Perhaps I could say unfortunately yes.
Q. You no doubt had seen many complainants?A. Indeed I had. In fact, I think there is somediscussion in this transcript about Glennon in - I think[AFA] refers to him as a learned man, et cetera.
Q. But you had had cause to investigate his conduct inrespect of other complainants, I take it?A. Yes.
Q. If we can just turn over. Halfway through the second
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page there is reference to you saying, "They've", that iscomplainants, "have a continuing and unfettered right toreport that to the police. In Glennon's case that'sfutile." Then, "Now when I say it's futile, it's" and thenyou were interrupted, and then further on if we continuedown the page and perhaps over to the next page you say,"Now do you want to go to the police?" And [AFA] says,"Well, if there's a chance of putting him back in prisonI think I would go to the police because I just know thathe'll reoffend." Then you say, "If you go to the policeI'd immediately do nothing," because it's your inflexiblepractice if the matter goes to the police that you can't beseen to be a substitute for the police force.
Then you say, "So, he's out in about two years," andthen you ascertain that the matters in respect of [AFA]occurred in 1975 and 1976 at St Gabriel's Reservoir parish.And continuing down you say there that you encourage peopleto go to the police, "but let's just look at this imbalancethat if you went to the police and they charged Glennonwith what he did to you, that would be I suspect verysimilar to what a lot of other people had happen to themfor which he's been convicted"?A. Yes.
Q. Just stopping there, was that based on your ownknowledge in your role as Independent Commissioner withprevious complainants?A. I'm simply saying that would be very similar to what alot of other people have happened to them and for whichthey have been convicted.
Q. But what is your source of information for that is thequestion, Mr O'Callaghan? Is it your own experience withother complainants?A. Yes. The files that I have in respect of Glennon arevery compendious and I have traced Glennon's history ingreat detail and I think later on in this interview or inone of the letters I indicate the occasions on whichGlennon has been convicted.
Q. Now, continuing over the next page you say that,"There's a real prospect for even such a notorious fellowthat the court would say he's done his time." Thenfurther, "If you go to the police it would take a year ortwo years." Then you confirm what [AFA] said, "There's noguarantee he'd be convicted." Then you indicate, "On the
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other hand, what I'm saying is doing this, if you satisfyme that, and you won't have much difficulty doing that,then I can refer you to Carelink and the like." Juststopping there. Can I suggest, Mr O'Callaghan, that inthat exchange you don't provide any reasons to encourageMr [AFA] to go to the police; do you accept that?A. I was telling him what my opinion was as to what hadhappened and what is likely to happen.
Q. Do you accept that you were not providing him with anyreasons to encourage him to go to the police?A. I don't wish to evade that question, but I was not -I was doing nothing than what I just described I was doing.
Q. Your job was to encourage people to go to the police?A. Yes, appropriately.
Q. Can I suggest to you that in this case you did notencourage Mr [AFA] to go to the police?A. Well, I don't accept that and I accept - I would saythat if you look at the transaction as a whole, the wholeof the transcripts, the letters I wrote to him, that he wasgiven the facts such as would encourage him to go to thepolice. He knew all of the parameters if he did.
Q. Can I also suggest that indeed what you were doing waspositively discouraging him from going to the police?A. No, I don't accept that.
Q. Perhaps if we can then turn to your letter to him, tab269?A. Could I just say, with respect, that the context ofthat, in which those remarks should be seen, should be seenin the entirety of my interview with him which is recordedin the transcript.
Q. My question is to you based on the entirety of thatinterview, Mr O'Callaghan?A. Yes.
Q. Tab 269, this is your letter to him in February 2011,and if we can scroll down to the end of the first page youset out for his consideration matters which he mightconsider relevant as to whether he should go to the police?A. Yes.
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obligation to and that many complainants don't?A. Yes.
Q. You refer to his concern that on release he mayreoffend?A. Yes.
Q. And that that would be removed if he was sentenced toa further term of imprisonment?A. Yes.
Q. You then in paragraph 3 say it's likely that he wouldbe convicted but there's an issue as to what sentence hemight receive, and then you refer to all of the years thathe committed offences for which he had been convicted?A. Yes.
Q. Did you access that material from your files inrelation to other Glennon matters?A. To my files and also to court reports.
Q. Public records?A. Public records.
Q. And then still in paragraph 3 you say that "the courtwould perhaps not imprison him or alternatively only for arelatively short period"?A. Yes.
Q. That was your professional opinion, I take it?A. Well, it's difficult to remember precisely, butI think it was a reflection of my having observed in theparticular case that the judge suspended the sentence inrespect of the notorious Des Gannon, and I have providedthe press report of Judge Barnett's report.
Q. But that's in relation to Gannon, isn't it, notGlennon?A. It is, but it is relevant in my mind because theywere, I suppose, if you can say it, I think Glennon wasworse, but they were both notorious offenders.
Q. Glennon was worse, did you say?A. I think so. Yes. It would be a balancing act todifferentiate between these evil men.
Q. I might tender this, Your Honour. This is an article
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from - where was it?A. I think it's an article from The Age of July 2000.
Q. I see. So it is an on-line reference to it, I gather?A. I believe so. I had a memory of that because whereI got that document was from a file of a victim ofGlennon's which I decided some time ago and I obviously hadthat placed on the file - on that file when I read it.
Q. So you had regard to Mr Gannon's experience in respectof the advice you gave concerning Mr Glennon?A. Well, I had regard to the judicial response to - asthe article says, these were very serious offences.
THE CHAIR: We will make the article exhibit 16-6.
EXHIBIT #16-6 ARTICLE FROM THE AGE NEWSPAPER
MS FURNESS: Thank you, Your Honour. Q. You then referto the Sex Offenders Registration Act?A. Yes.
Q. And you are assuming that he will be a registered sexoffender for life?A. Yes. That flowed from questions and answers whichappear in the transcript.
Q. Yes, it does indeed. Then you express the opinionthat there would be a real possibility that the policewould decline to charge?A. Yes.
Q. And how long it might take if there were to be acommittal?A. Yes.
Q. And the fact that you wouldn't take any steps if hedid go to the police?A. Yes.
Q. Can I again suggest to you in relation to [AFA] thatyou did not encourage him to go to the police?A. I consider that I placed before [AFA] relevant factsand I clearly recorded that I do encourage people to go tothe police, but I stressed to him I think in my letter tohim, "It's your decision".
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Q. Yes, you use the words "I encourage the exercise ofthat right," but in fact in the individual case of [AFA]the reasons that you set out are largely discouragingrather than encouraging, aren't they?A. Well, I disagree with that in the sense thatI consider that, reasonably construed, I gave satisfactoryadvice, if you can call it that, to Mr [AFA] so that hecould make the decision which was his to make.
Q. But you weren't acting as a barrister, Mr O'Callaghan.Your job wasn't to advise him. Your job was to encouragehim to go to the police; isn't that right?A. Yes, and I go back to the context which I was talkingof in the previous case and in any case, that I look at thewhole picture.
Q. You have had the opportunity of reading Mr [AFA]'sstatement, have you?A. Yes.
Q. And you know that he did go to the police after he hadreceived compensation from the Compensation Panel?A. Yes, he did.
Q. And he had a very positive experience with the police?A. Yes.
Q. And they told him they were very keen to progress thematter?A. Yes.
Q. And charges were laid against Father Glennon?A. Yes.
Q. Unfortunately he died in prison before those chargeswere heard?A. Yes.
Q. He then says that after he had spoken with the Officeof Public Prosecutions he received a phone call from you?A. I don't think that's correct. The phone call that -he rang me some time fairly shortly after or around thecompletion of his application to the Compensation Panel andhe said, "I'm going to the police," and he said wouldI consent to his taking the transcript of interview withhim and I said, to the best of my recollection, "You don'tneed my consent, but I will readily give it." That
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happened. Then I subsequently rang him to ask what hadhappened. I did that, as I say, on a number of occasionsbecause I was in the process of preparing submissions tothe parliamentary inquiry in which I was dealing with theissue of reportage to the police and I instanced this asone example of where the victim didn't originally go to thepolice, but after he was compensated he did, and there's apassage of that recording that in the parliamentarycommittee which I set out in my statement.
Q. Did he also tell you the outcome of going to thepolice?A. He told me - the first thing, the sequence, andI think this does appear in my statement, the sequence ishe spoke to me with respect to going to the police andhaving my consent to take the transcript. I then rang him,as appears from my statement, I then rang him and asked himwhat had happened. He said, "I have been to the police,made a statement, and I think" - words to the effect, theyare in my statement, words to the effect of "I think theyare going to charge him." Then I rang him some time laterand he again told me that he had been interviewed, I think.I may have this out of sequence, but if I could just referto my statement.
Q. It's not in your statement, if I can help you?A. Pardon?
Q. It's not in your statement.A. Not in my statement that I spoke to him and the reasonI spoke to him?
Q. No, unless I'm reading the wrong page of yourstatement. I'm sorry, later in your statement, not earlierin your statement. I apologise. I was later in yourstatement towards the end of it. Perhaps if we can haveparagraph 64. Perhaps if we can go earlier, paragraph 59of Mr O'Callaghan's statement. You refer in your statementto him ringing you before 2 August 2012 telling you that hewas going to report to the police and then you rang him onthat date asking him what had happened, and then inFebruary 2013 and he told you then that Glennon wasprobably going to be charged?A. Yes.
Q. The fact that the police did ultimately charge MichaelGlennon, did that give you pause as to whether or not you
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should be advising complainants as to your view as to whatthe police may or may not do?A. I considered that it was appropriate for me to saywhat in my opinion was likely to occur.
Q. So it didn't give you pause to consider advisingcomplainants as to your view as to what the police mightdo?A. This is a fairly rare case, as far as I can recall.But I certainly - there are tonnes of files which willrecord my encouragement of the police in terms of what youmight accept as encouragement. This was in 2011 and I havecontinued my practice of encouraging people to go to thepolice.
Q. Do you continue your practice of advising them as toyour opinion on their prospects if they go to the police?A. In a very limited number of cases.
Q. Why do you only do it in a limited number of cases?A. Because I feel that I have a duty to acquaint themwith all the criteria which they can have in decidingwhether or not to go to the police.
Q. Why does that duty only arise in a limited number ofcases?A. Because the reservations I have about what the courtmight do in this case and in, for instance, another case inwhich I said to a person without discouraging him fromgoing to the police, "I must say that it may be that theaction will be not accepted by the court" or words to thateffect, and she did go to the police, there was a committalhearing and then the DPP or OPP withdrew the prosecution.
Q. Just coming to paragraph 68 of your statement you saythere:
Had I been of the opinion that there wereprospects of successfully taking action atcommon law, I would have recommended heseek independent legal advice.
A. Yes.
Q. We dealt with that yesterday and you are coming backto us on those other five cases where you did recommendthat they seek advice?
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A. Yes. I think overnight I have ascertained I thinkit's probably four. But I also have in the back of my mindthat a solicitor rang me in respect of a complaint andindicated who the offender was and I said, "Without takingthe matter further I think you should look at such and sucha case and take it from there," and that person never cameback, naturally.
Q. So in not recommending that he seek independent legaladvice, were you relying upon your memory of what you knewabout Glennon from the files from the Archdiocese that youhad obtained in the course of many investigations?A. Yes. I would have been relying upon the fact thatthere had been, to my knowledge, no actions brought againstGlennon and that the difficulties of bringing that actionwere to prove knowledge of a vicarious sort and I didn'tthink that would occur. If I did think there were someprospects of it occurring, I would do as I have said.
Q. I understand that. It's the source of yourinformation on which you provided your advice that I'masking you. It was based on the material that you heldfrom your previous investigations in relation to Glennon?A. Yes, and as I say, unfortunately for the reasons ofhis malevolence I have very extensive extra notes inrelation to the activities of Glennon, and the one thingthat I was referring or referring to there is that therehave not, as far as I'm aware, been any actions broughtagainst Glennon.
Q. Would you expect --A. Against the Archdiocese for liability for Glennon.
Q. Did you make enquiries of the Archdiocese or theirsolicitors as to whether there had been any cases broughtagainst Glennon?A. I'm not sure that I made any enquiries, but I wouldhave become aware of it. As I say - and I hasten to saythis too often - the Glennon files are very comprehensive.I have read reams of correspondence that he had withArchbishop Little, this is after he had been found to havethese propensities, and so I have a long knowledge ofGlennon and his matters.
Q. But whether there was any civil action taken would beof a more current nature and you wouldn't necessarilyexpect that to be on Glennon's files, would you?
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A. No, certainly I wouldn't have. But I would havebecome - if Glennon had brought action, I'm sure I wouldhave become aware of it in one way or another - if someonehad brought action against Glennon and the Archdiocese.
Q. So you assumed you would have been told, but youdidn't make any enquiries to satisfy yourself that that wasin fact the case?A. I don't think so.
Q. In relation to the complaints that are currentlybefore you as Independent Commissioner, how many do youhave that are active?A. At this moment?
Q. Yes?A. I think there are about close to 10 outstanding and inone of those cases I'll be advising of the opportunity, ifthey wish, to take action elsewhere, but I shouldn'tdiscuss that here at the moment. But that's about theorder of it. That's over a couple of months, I think. AsI say, as I said to the Commission yesterday, whenI retired at the power outage a person rang me up andthat's been passed on to Mr Gleeson.
Q. Do you report in some form of way to the Archdioceseon a regular basis as to how many complaints you still havethat haven't been resolved, how many have been resolved?A. No, I don't. As I say, in the ordinary case where thepriest is dead or convicted or not in active practice,I don't tell the Archdiocese of my dealing with thatcomplaint and the Archdiocese would become aware of it whenthe report of the Compensation Panel is made.
Q. Have you instituted any system whereby people canformally provide you with feedback as to their experiencewith the Independent Commissioner?A. Would you mind saying that again?
Q. Certainly. Have you instituted any system wherebypeople can provide feedback to you, tell you what they havethought of the experience with the Melbourne Response andin particular your role in it?A. I have taken no formal steps in that regard. In someinstances I have had communications from victims who haverung up and are no longer involved in the process, but forsome reasons of interest or other they have rung me up to
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tell me what they were doing and how they were doing. ButI have no formal situation of, for instance, polling thevictims to ask them of their experiences and I would thinkit would be highly inadvisable to do so unless I had theirspecific consent, because to retraumatise people isunfortunately not very hard.
Q. You understand, of course, that seeking feedback canbe done otherwise by way of polling?A. Of course I do.
Q. Is there any review process available to a complainantfrom your decision?A. There is no review within the Melbourne Responseitself. But I have said that if a complainant or a victimhad been denied natural justice or the decision that wasmade was so unreasonable that no decision maker would makeit, and like situations, then there would be a remedy atlaw in Order 56 of the Supreme Court Rules.
Q. Has anyone taken that path?A. No, not that I'm aware of, and I would be aware of itif they did.
Q. Yes, I accept you would be aware of it,Mr O'Callaghan. Am I correct in understanding that priorto the announcement of the Victorian inquiry you wereproposing to either stand down or wind down, withMr Gleeson intended to take over the bulk of the work; isthat correct?A. That's certainly correct.
Q. And because of the Victorian inquiry you thought itappropriate to stay on?A. I did, because I thought it would be inappropriate toleave and perhaps attract the caption that "he's off theship" and indeed, if I might say with respect, I have thesame attitude in relation to accounting for my stewardshipbefore this Royal Commission rather than doing it from aretired basis.
Q. Thank you, Mr O'Callaghan. Nothing further.
THE CHAIR: Does anyone else have any questions?
MR CASH: Your Honour, I do have a limited amount ofquestions on behalf of Mr Hersbach. I don't know whether
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Your Honour wants to proceed in this order or --
THE CHAIR: I'm happy to take you in whatever order isappropriate. Does anyone else wish to ask questions?
MR MYERS: I will ask Mr O'Callaghan some questions whenall those who have other interests have done so.
THE CHAIR: You would like to come at the end. I thinkthat's fair.
MR SECCULL: Yes, I have a brief number of questions also,Your Honour. I act on behalf of the Foster family.
THE CHAIR: Anyone else?
MR RUSKIN: No, sir
MR GRAY: No, Your Honour.
THE CHAIR: I think the two of you should go one after theother and then Mr Myers.
MR SECCULL: If Your Honour pleases.
<EXAMINATION BY MR SECCULL:
MR SECCULL: Q. Mr O'Callaghan, Seccull is my name.I appear on behalf of the Foster family.A. That's information I already know.
THE CHAIR: The reason for that, Mr O'Callaghan, forcounsel saying that --A. I was being unduly facetious, Your Honour.
THE CHAIR: It is important that those who are watching,and there will be thousands watching this on the videothrough the net, know what's happening here.
MR SECCULL: Q. I'm wondering, Your Honour, ifMr O'Callaghan could be shown tab 105, please.Mr O'Callaghan, you probably recognise this document. It'sdescribed as your file note bearing the date of 30 April1997, is it not?A. Yes. I haven't looked - I accept what you say as tothe date.
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Q. Obviously as at that date, that is 30 April 1997, youwere seized of a complaint having been made by Emma Foster?A. The sequence of events was that I had the discussionswith Mr Anthony Foster, wrote to Mr Anthony Foster, thenthere was an arrangement for me to meet with the Fostersand Emma on 17 March.
Q. Yes?A. Clearly that was in pursuit of a complaint of sexualabuse.
Q. Yes, thank you, Mr O'Callaghan. Obviously this filenote that you have dictated occurred at a time subsequentto that meeting?A. Yes.
Q. And in the course of your investigating the complaintmade by Emma?A. Yes.
Q. And in fact at a period of time significantly priorto, firstly, your proposed finding in relation to Emma thatoccurred on 3 October 1997?A. Yes.
Q. And your final finding that occurred on 10 June 1998?A. Yes.
Q. If I can just ask you, please, to - or just scrolldown that document and if I could be permitted to read:
I was rung by Mrs Chris Foster at about5.30 who said she had spoken to Sue Sharkeyand Sue Sharkey had made requests aboutProfessor Ball and so on. She then read tome the lengthy letter from the VicarGeneral, which I must confess I said I hadnot remembered, but my memory wasultimately refreshed.
If I can just stop you there, that letter from the VicarGeneral in fact you had been provided, had you not, with adraft of that letter?A. I believe I was.
Q. Yes.A. I may have been provided with the final letter. I'm
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not sure.
Q. Thank you. And that was the letter that appears attab 102. That's a letter dated 3 April 1997?A. Yes.
Q. And as we scroll down you will see there that it is tothen Monsignor Hart, you are copied in, as are Carelink?A. Yes.
Q. And it is from Mr Richard Leder from Corrs?A. Yes.
Q. As we get to page 2 you will see that Mr Leder hasprovided for the benefit of the then Vicar GeneralMonsignor Hart a suggested draft letter that was to be sentto Mrs Foster?A. Yes.
Q. Indeed, if we then turn to tab 103 that's a letterbearing the date 3 April 1997, the same date as thefacsimile to which you were copied in and it represents,does it not, the suggested draft authored by Mr Leder?A. Yes.
Q. If I can take you back to tab 105, please. Mrs Fosterrelays to you, paragraph 2:
Suffice to say that I then read to herletters which I had written to MonashMedical Centre, et cetera, about obtainingmedical reports and told her that let'shold our horses until we see the results ofthese letters. She made it clear (andI stress these are just segments of alengthy conversation) that they would muchmore prefer to talk to me than to talk toProfessor Ball about Emma's matters.
A. Yes.
Q. And then in the next paragraph:
She then volunteered that Emma had gone tothe Prahran Police Station with TaniaSmith, a psychologist. I said, "Well,I wondered about that because the man's no
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longer here."
If I can just stop you there. What did you wonder about?A. They were going to the police to complain about aperson who's dead, in the sense that obviously no actioncould be taken against the deceased.
Q.But she then said, well, she thought thatmight be a way in which Emma could proveher case, or words to that effect.
A. Yes, and indeed that proved to be propheticallycorrect.
Q.I said, "Well, that may be a shortcut, butin any event perhaps in due course Emma mayspeak to me."
A. Yes. I think you would have heard, Mr Seccull, thatEmma at the meeting on 17 March said she was going to speakto me, but she then said she didn't want to do that then.
Q. Then in the next paragraph:
Superimposed over all this is the realquestion mark as to whether in fact Emmawas abused by O'Donnell.
Obviously as matters progressed you made the preliminaryand then formal finding that a complaint had been made outin respect of Emma?A. Yes.
Q.Palpably, the parents are convinced of it.But there is some elements of "we protesttoo much."
A. Yes.
Q. Could you just explain what you meant by that, "weprotest too much"?A. I think that's a - I was just saying that the emphasisthat they were making was an emphasis of - but at the sametime they were expressing concerns as to how to establish
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that she had been abused.
Q. "On the other hand, I think the Corrs drafted letter"- and that's the letter which I referred you to earlier?A. Yes.
Q. "... has had the effect of having them appreciate thatit may be the tap for moneys for support might be turnedoff"?A. That was if - if a finding wasn't made, that would bethe result.
Q. "As Professor Ball said to me yesterday, there is noprovision in the arrangements for turning off the tap"?A. Yes.
Q. "He went so far as to say a girl like Emma could costmillions"?A. Yes.
Q. Now, if I can just ask you to pause there, please,Mr O'Callaghan. Did you not think it appropriate at thattime in your investigation in respect of the complaint byEmma that you have communication and discussion withProfessor Ball?A. I can't recall the circumstances of my discussion, butobviously I did speak to him and that was when I recallthat he did say that Emma's grievously conditioned to andwould have to receive treatment over a longer period. Thisis an internal document which simply recorded what washappening. It plays no significance in my lateractivities.
Q. Yes. I note that at the bottom right-hand aspect ofthat page, and I presume it's your writing, Mr O'Callaghan,"Working note. Not to be sent"?A. Yes, that emphasises that this was an aide memoire, ifyou like, for me and me only.
MR SECCULL: Thank you, Mr O'Callaghan.
<EXAMINATION BY MR CASH:
MR CASH: Q. My name, Mr O'Callaghan, is Cash. Youwould be aware, of course, that I act on behalf ofMr Hersbach?A. I do, Mr Cash.
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Q. Sir, I might just take you to, if I may, tab 11 andthe terms of appointment. If they could be brought up onthe screen, please, and in particular page 3 of thoseterms. We can see on page 3 of those terms how one of theterms, number (v), is that:
The Commissioner will not act so as toprevent any police action in respect ofallegations of sexual abuse by churchpersonnel.
You will recall the evidence of Mr Hersbach which wasnamely, based on that advice, that is how you told him inthe letter that you sent him that there was not much pointin taking the matter to the police?A. Yes.
Q. He said that, "Based on that advice, I did not go tothe police"?A. Yes.
Q. I suppose it's fair to say that in retrospect thatadvice was such as to in effect - the effect of that advicewas to prevent him from taking police action; is that fairto say in retrospect?A. Well, I wouldn't say prevented. It may have been afactor in his not taking that step.
Q. To the extent that your job was to appropriatelyencourage the exercise of the right to take a complaint tothe police, this was really inconsistent with that, wasn'tit? It was a discouragement, wasn't it?A. No, I don't agree with that, Mr Cash. What I haveendeavoured to say is that I thought I should explain tohim what I would apprehend would be the likely reaction ofa statement which is one of, "I can't really rememberanything," and I stress again in complete contrast to themuch more emphatic and detailed statement he made to me ata later time, in which I would not certainly have said,"There's no point in going to the police."
Q. Because he gave evidence, didn't he, about how it isthat in retrospect he considers it's inappropriate that yougave him your opinion about going to the police and whatwould happen if he went to the police, didn't he?A. Yes, I heard that.
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Q. I might take you, if I may, to the interview that wasconducted between you and he, and it's in the materials attab 236. If tab 236 could be brought up on the screen,please, and in particular page 5 of that transcript. Inthe middle of the page or thereabouts you ask him, don'tyou, "Do you recollect anything he did to you?" And hesaid, "No, no," and then goes on, doesn't he?A. Yes.
Q. His allegation was not one of being physically touchedby the priest in this instance, was it?A. Yes.
Q. You agree with that?A. Well, yes.
Q. And so he's saying there in answer to the question,"Do you recollect anything he did to you," he says, "No,no," perhaps conveying that he didn't do anything of aphysical nature, that is touching him, perhaps; you acceptthat?A. Yes.
Q. And he goes on and he says, "I recollect him at alater stage when we were in the Patch." Now, just stoppingthere. He's going on to describe something that happenedat a particular venue, isn't he?A. Yes.
Q. And the Patch, as I understand it, is a region inMelbourne around Mount Dandenong, isn't it?A. I believe so.
Q. So he's providing you with a timeframe - sorry, he'sproviding you with a venue, but we also know, don't we,that he lived in the Patch at a particular time in his lifewhich can be identified, can't it?A. Yes.
Q. So he provides you with an idea of the venue and anidea of the timeframe, and he goes on to say, "I saw himnaked and I recollect him, what I now know he was, canI call it, in the early stages of masturbation"?A. Yes.
Q. "I recall seeing him naked, walking out of his room
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and he would walk around the house, this is when I was ingrade 4." So he was giving you some detail of this grossindecency that was being performed in his presence, wasn'the?A. Yes, the events of which he recalled.
Q. Pardon, sir?A. He is giving me his recall of the events which he wassubject to.
Q. And he described those events as being indeliblyetched in his memory, didn't he?A. Yes. Would you take me to that part of thetranscript?
Q. It appears over the page at page 6. If we couldscroll down to the following page, page 6 of tab 236, wecan see how he says, "Yes, exactly, exactly. It's burnedin my memory. I can remember it. That's why at the Patchthat's the one that's a lot more vivid."?A. Yes. Can you bring me to that passage?
Q. If we scroll down a little bit further. You have iton screen now, sir. It reads, "Yes, exactly, exactly," hesays. "It's burned in my memory. I can remember it.That's why at the Patch that's the one that's a lot morevivid." Just stopping there. So he's telling you it isindelibly in his memory in the sense that it is burnedtherein, isn't he?A. Yes.
Q. And how it is that it's a lot more vivid, thisparticular incident. Isn't he saying that?A. I'm sorry?
Q. Isn't he saying that?A. Would you repeat that?
Q. He is saying that, isn't he?A. Obviously what's there he is saying.
Q. "Because I would have been, well, grade 4." "How oldare you about 9 nearly 10 at that stage. After that,nothing." The question you ask, "So you've got a clearmemory of what you describe as the start of himmasturbating"?A. Yes.
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Q. And the answer is, "Yes, I do." You say, "He wasfondling his own penis?" And he agrees with that. And youask him, "But apart from that, have you got any othermemory of a specific act or ...?" And he says, "I don'thave any other memories of him of other specific acts.I don't have any memories of specific acts involving himtouching me. I don't have, you know, the acts thatI recall where him being inappropriate with himself aroundus. I can't recall any incidents where he eitherinterfered with me personally, no." So that's theconversation that was had as between the two of you whichwas recorded, wasn't it?A. Yes.
Q. He is quite clearly there describing what is quiteclearly an act of gross indecency being performed in hispresence when he was a child; is that right?A. He was describing that Rubeo was apparentlymasturbating or endeavouring to masturbate himself.
Q. Which on any interpretation amounts to an act of grossindecency being performed in his presence?A. Yes.
Q. Into the next tab, namely 237, we have got there notesof what's described as "Re telephone conversation withMonsignor Tomlinson re Paul Hersbach"?A. Yes.
Q. It is unclear to me and you might be able to assist meas to the circumstances of this, but it reads about a thirddown the page - I will start with the top. "What happenedin Laverton involved the father of Paul." "The father andhis brother." This is a conversation that you are havingwith Monsignor Tomlinson, is it?A. Yes, it is.
Q. Where "M" is referred to, that's Monsignor Tomlinson,and "P" is yourself; is that right?A. Yes.
Q. And it goes on to read, "P: Yes, indeed." "M: And nowthis is the son." "P: Yes, it is." "M: Was there any, isthere any likelihood of charges on this count or was he ofage?" I will just stop there. Did this conversation takeplace some time after the interview that was conducted on
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9 March with Paul Hersbach and before the letter that yousent to him on 20 April 2006?A. I think the conversation - I have the date of thatconversation somewhere, but I thought that was after theprocess had been almost completed, if not completed.
Q. I'm just curious because it is at tab 237. Tab 236 wehave the interview dated 9 March. Then at tab 237 we havethis conversation. Then at tab 238 the next document isthe letter that you sent him saying, "Look, there's notmuch point in going to the police." This is at tab 238. Sois it the case that this conversation that's recordedbetween yourself and Monsignor Tomlinson occurred after theinterview with Mr Hersbach?A. And I would think well after I had sent the lettersand indeed - I could have this checked.
Q. All right?A. But I would have thought it was - by the way itappears in the file, you are referring to the sequentialfiling, but I don't think that's correct in the sense of itbeing before that letter or the --
Q. Whatever the timing of the conversation which isrecorded in tab 237 and which is on screen at the moment,it is evident that Monsignor Tomlinson is expressinginterest, if not concern, as to whether there is anyprospect of charges being laid, isn't he?A. That is there. I have difficulty myself in - I gotthe impression I think it certainly is that Tomlinson whoknew Rubeo was concerned if any abuse had occurred when he,Rubeo, was at the presbytery or things of that nature. ButI must say, Mr Cash, that I'm not quite clear what thepoint of this conversation was.
Q. The point is this --A. I'm not saying your point, I'm saying the point of myconversation with Mr Tomlinson.
Q. I see. Leaving aside the point of your conversationwith him, it is evident, isn't it, from what he says whenhe says, "Was there, is there any likelihood of charges onthis count or was he of age," he is expressing interest, ifnot concern, in the prospect of charges being laid inrelation to a priest, isn't he?A. Well, I think more accurately he's probably expressingconcern that if abuse had occurred it may have occurred
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when he was friendly with Rubeo.
Q. Your response to him is, "Well, look, I don't -I haven't really thought other than that what it is iswould be I don't think likely to be prosecuted andcertainly not likely to be prosecuted because Rubeo wasconvicted of indecent assault or whatever many, many yearsago." Sir, the fact that he was convicted of indecentassault or whatever many, many years ago, that wouldn'thave any bearing, would it, at all upon - as to whether hewas prosecuted in relation to Paul Hersbach?A. Yes, I agree.
Q. And so that thinking can't really be a plausibleexplanation as to why the priest in this instance wouldn'tbe prosecuted in relation to Paul Hersbach; that's fair tosay, isn't it?A. Well, as I say, Mr Cash, I don't recall the detail ofthis conversation other than what appears in thetranscript. But I can only say that whatever you caninterpret from what's recorded, that's the position,because I can't recall the detail of it.
Q. All right. Just going on the transcript that we dohave, just say it was the case that Paul Hersbach was tohave gone off to the police complaining of an act of grossindecency in his presence conducted when he was a child.If the police were aware that this particular priest haddone similar sorts of things years before in relation toPaul Hersbach's father, that would make them, you mightthink from a lay perspective if not anything else, evenmore interested to hear what Paul Hersbach had to say aboutFather Rubeo?A. I would agree that if they were aware of that,obviously.
Q. And they would be even more likely to pursue acomplaint given those circumstances perhaps; is that fairto say?A. Well, I think they would evaluate the evidence inrespect of what the statement that Paul Hersbach at thatpoint would have made to them and which I have said, withall respect to Mr Hersbach, was, if I can simply state,somewhat hazy.
Q. What's hazy about a suggestion made by Mr Hersbach ofsomething which is indelibly impressed in his memory in the
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sense that "it's burned in my memory, a lot more vivid,"namely that he was fondling his penis in his presence?What's hazy about that suggestion, sir?A. Well, I think if you look at the whole of thetranscript, that's why I use the description of "hazymemory", because if you go down further I think you willfind that he said, "I haven't got a memory" or things ofthat nature.
Q. I don't want to unnecessarily go back to thattranscript, but if we could look at it again, please, tab236, page 6 thereof?A. Yes.
Q. He's quite clearly saying, and I don't want to berepetitive, what he is saying there, I have taken youthrough it at the bottom about how it's burned in hismemory, that this is a lot more vivid. You confirmed withhim how he has got a clear memory of what he describes asthe commencement of masturbating of a Catholic priest inhis presence and that he is fondling his own penis. If wego over the page: "Yes, I do. He was fondling his ownpenis, mmm." "But apart from that have you got any othermemory of a specific act or" and he goes on, "I don't haveany other memories of him of other specific acts." So he istalking there about how it is his memory in relation toother things, he doesn't have other memories of otherspecific acts?A. Yes.
Q. But in relation to this particular act of grossindecency performed in his presence when he was a child,he's quite specific about how he certainly does have amemory of that etched in his memory. "This is whathappened." He told you that, didn't he?A. Yes, he did. I think if you could go on with thetranscript.
Q. In fairness to you, of course, we can go throughit --A. You needn't.
Q. What I invite you to accept is the rest of thetranscript of that conversation may or may not be inrelation to other events, but in relation to this specificepisode he is quite clear, isn't he, how there was thisevent, it's indelibly etched in his memory?
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A. Yes.
Q. There is no haziness about that, is there?A. There doesn't appear to be.
Q. And that was quite clearly an offence committed byFather Rubeo, wasn't it?A. I didn't make that conclusion.
Q. Well, it would have been an act of gross indecencyperformed in the presence of a child and prosecutable,wouldn't it have been?A. Well, that is probably the case. But what I thinkI had at the back of my mind is that here is a bloke in ahouse in which his memory is he sees him tampering with hispenis. Anyway, I can't help you any more, Mr Cash.
Q. So it is that on the strength of that interview youwrite to him on 20 April, and it's at tab 238, if thatcould be placed on screen, please. Can we scroll down abit. You in the second last paragraph on that page say:
In your case, however, with respect to theunsurprising haziness of your memory therewould not appear to be much point in yourtaking the matter to the police. However,that is a matter for you.
Quite clearly it's not accurate to describe hisarticulation in the conversation that was recorded with youabout this particular event as "hazy", is it?A. The particular event you refer to, that appears to beso.
Q. And to the extent that you have offered him thisadvice that "There would not appear to be much point inyour taking the matter to the police," you accept now,don't you, that if he did take it to the police incircumstances where the police were - it was made known tothe police that this particular priest had been gaoled inthe past, there would be a greater interest, one mightthink, in the police in listening to Paul Hersbach'scomplaint, wouldn't there?A. Yes, I can see that.
Q. Can you tell us this, please, sir. Did you ask FatherRubeo what he would say about this allegation?
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A. Did I ask Father Rubeo?
Q. Yes?A. No, I don't believe I did.
Q. You see --A. I accepted that he had engaged in conduct which camewithin my definition, as I think I said before, and ifthere's not - I certainly would have kept in mind whatI had previously known of Rubeo and I accepted what Mr PaulHersbach said in relation to his contact with him.
Q. Father Rubeo had actually, in relation to theallegations by Paul Hersbach's father, Tony, he hadactually gone to court and admitted those allegations?A. Yes, he did.
Q. He pleaded guilty?A. Yes, he did.
Q. So it might have been the case that, had you discussedthis with or asked Father Rubeo about what his attitude tothis allegation was, that Father Rubeo might have had thesame inclination to confess all?A. Well, I would have been unsurprised if Rubeo hadadmitted it. But the reason I didn't pursue it was that hehad been placed on retirement and I couldn't make anyfurther recommendations to the Archdiocese in relation tothat being the case. So he was at that time functusofficio as a priest.
Q. He may have been functus officio as a priest, but hewas nevertheless capable of being prosecuted as a humanbeing, wasn't he?A. Certainly.
Q. And if your state of mind was, "Well, look" - correctme if I'm wrong - "the likelihood is that if he has doneanything wrong he would admit to it," then wouldn't thatmean that if the police investigated it there would be aneven greater likelihood of a prosecution being successful?A. That's a matter I couldn't really disagree with.
MR CASH: Thank you.
THE CHAIR: I think we might take the morning adjournment,and then Mr Myers.
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SHORT ADJOURNMENT
THE CHAIR: What is the position in relation to CardinalPell?
MS FURNESS: Your Honour, the position as I understand itis that, based on what I have been told, it should be ableto be dealt with inside of three hours. I qualify that asto based on what I was told.
THE CHAIR: We will plan on that basis. Yes, Mr Myers.
MR MYERS: I understand that one of my learned friends hasa few questions.
MR GRAY: Your Honour, may I ask just a couple ofquestions?
THE CHAIR: You will need to find a microphone, I think
MR GRAY: May I ask a couple of questions arising out ofsome questions Mr Cash asked?
THE CHAIR: Yes, Mr Gray.
<EXAMINATION BY MR GRAY:
MR GRAY: Q. Mr O'Callaghan, if we could have tab 237back up, please.
MS FURNESS: If my friend might indicate who he isappearing for.
MR GRAY: I'm sorry. May it please the Commission, myname is Gray and I appear for the Truth, Justice andHealing Council and for the Archdiocese of Melbourne. Onlya couple of questions, Mr O'Callaghan. You remember thisis a note you were taken to by Mr Cash?A. Yes.
Q. Of a conversation or a transcript of a conversationwith Monsignor Tomlinson?A. Yes.
Q. And it comes in the tender bundle just after adocument concerning Mr Hersbach dated March 2006?
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A. Yes.
Q. But you mentioned this morning that you thought thatin fact this conversation with Monsignor Tomlinson actuallycame some time later?A. Yes.
Q. Could I just ask you to have a look at page 5 of thistranscript, if we could scroll down in tab 237. Do you seethere's a passage attributed to you, that is P, where yousay, "I think there is undoubtedly the case that what thevisit to the presbytery is for", et cetera. Do you seethere's a reference to a visit to a presbytery?A. Yes, I see. Yes.
Q. Do you have a recollection that at the time of thisconversation with Monsignor Tomlinson one of the thingsunder discussion was the possibility of Mr Hersbach goingto visit the presbytery where some of the relevant eventshad happened, a request from him to do that?A. Yes.
Q. And if we could turn, please, to tab 259, do you seethat's an email from - I think it's your secretary; is thatright?A. It is.
Q. To Monsignor Tomlinson dated 11 April 2008, about twoyears later?A. Yes.
Q. And do you see in the first and second paragraphsthere's reference to Mr Hersbach asking if he could visitthe relevant presbytery?A. Yes.
Q. Does that assist you to recall that the conversationwith Monsignor Tomlinson probably took place in about April2008 or a little thereafter?A. Yes, it does, and that's my belief.
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MR MYERS: Thank you, Your Honour. My name is Myers andI appear for Mr O'Callaghan. Would it be possible to puton the screen Mrs Foster's statement. I'm going to go toparagraph 46 at page 10, first of all. At the end of thatparagraph, if you could scroll down to page 10, it's thewords there, "Our solicitors informed us" and then over thepage, "that it would be very difficult to sue the CatholicChurch and suggested that we initially seek assistancethrough the Victims of Crime Assistance Tribunal as analternative to the Melbourne Response." Mr O'Callaghan, isthe Melbourne Response or the Victims of Crime AssistanceTribunal an alternative to the Melbourne Response or canone pursue both?A. No, in my experience there have been several instanceswhere compensation has been obtained via the MelbourneResponse and also via the Victims of Crime AssistanceTribunal.
Q. Could you look now at paragraph 47, if we can scrollthrough to that, and the words that I want to direct yourattention to in particular are the first sentence:
In May 1997 applications for assistancewere lodged with the Victims of CrimeAssistance Tribunal on behalf of each ofus. We then put those applications onhold.
Again, to your knowledge does a compensation payment fromthe Victims of Crime Assistance Tribunal affect anyassessment of compensation to be made by the CompensationPanel?A. No.
Q. I want to remind you now of two further paragraphs ofMrs Foster's statement. Paragraph 76, first of all,beginning with the last word on page 14:
Mr O'Callaghan also wanted to talkprivately to Emma, I assumed aboutaccepting the offer of $50,000.
Don't comment on it for the moment. Could we go toparagraph 110:
Our understanding is that the three stagesof the Melbourne Response are intended to
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be independent from one another. This isnot reflective of our experience with theMelbourne Response. The IndependentCommissioner's role is to determine whetheran assault has occurred, yet we were facedwith a situation where the IndependentCommissioner requested to speak with Emma,we assumed in relation to accepting theoffer of $50,000. We found this todemonstrate a lack of independence.
When you visited the Fosters in their home you made a filenote; is that correct?A. I did.
Q. And that's the file note of 6 May 1999 which is setout I think in full or pretty much in full at page 86 ofyour statement. Would you like to refresh your memory ofpage 86. That perhaps can be put on the screen.A. Yes.
Q. There are some redactions. If you just glance at it.Is that the file note that you prepared?A. It is.
Q. Did you prepare the file note shortly after you wentto the Fosters' home?A. Yes.
Q. Is it a true and correct record of the events of 6 May1999?A. Yes, it is.
Q. Let me ask you directly: did you seek to talkprivately with Emma Foster relating to her acceptance ofthe $50,000 offer of compensation?A. No, I did not.
Q. Could you now look --A. Can I add that Emma had herself or had signed I thinka written acceptance of the compensation offer and sometime much earlier than that. I certainly said nothing toher about the compensation offer.
Q. Could paragraph 96 of Mrs Foster's statement be putup, please. Mrs Foster says:
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Mrs Maheras advised me that she hadreceived two telephone calls in November2004 from Ms Harding stating thatMr O'Callaghan had not approved the paymentof our counselling expenses and that he had"hit the roof" about it.
If I could ask you now to look at paragraph 54 of yourstatement. I'm sorry, paragraph 54, I beg your pardon. Itis page 94. I'm sorry, it's page 54. I will get it right.Paragraph 31. I'm wanting you to identify the letter toMs Harding of 15 November, if that be it?A. Yes. That was a letter I sent to her for discussionand later, shortly after that, I wrote I believe formallyrepeating that letter.
Q. Are the contents of the letter accurate?A. Yes, they are.
Q. Do you have any recollection of hitting the roof?A. None at all.
Q. And did you have any view, or do you have any viewtoday, as to who should have paid the costs of thecounselling?A. My attitude was expressed in that letter, which was aletter of advice, if you like, or response to a requestfrom Elizabeth Harding, and I had also written a letter of7 April, I think.
Q. I would like to ask you about a couple of matters fromyesterday's transcript. Would it be possible to put uppage 4269. To refresh your memory, would you look at aboutline 30. There's a question asked of you by counselassisting, "But at this stage" - I won't read it all andyour answer was by way of question, "Before this letter?"Question, "Yes?". "No, I don't. I think it's contrary towhat Mrs Foster says in her statement." Then counselassisting says:
According to paragraph 77 of Mrs Foster'sstatement, she says, "In 2002 we instructedour solicitors to commence legalproceedings."
I invite you to look at paragraph 73 of Mrs Foster'sstatement, if that could be put up.
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A. Yes.
Q. That says:
On 26 February 1999 we met with Mr Secculland our solicitors to discuss possiblecommon law actions we could take againstthe Catholic Church. At that meeting weconfirmed with our solicitors that wewanted to pursue civil legal action againstthe Catholic Church rather than continuingwith the Melbourne Response or the Victimsof Crime Assistance Tribunal.
Is that the paragraph you had in mind?A. Yes, it was.
Q. Could there be put up on the screen page 4278 ofthe transcript. I will ask you to look at your firstanswer on the page, and then there's a question. Myrecollection, sir, is that it was you, the chairman of thetribunal, who asked this question. I'm going to read it:
Yes, I'm just not sure how your findingscould have affected in any way the civilaction either contemplated or in train?
Mr O'Callaghan, you said:
Well, in looking at the matter inretrospect, and you have cited a passage ofWatts v Hawke, I would commend you to lookat the authorities referred to and inparticular the statement by Lord Diplock.
If I may say so, Mr O'Callaghan, that wasn't quite ananswer to the question that was asked. I would like you toanswer the question, if you would?A. Well, one aspect certainly in which my findings, ifthey became published, could be in the process of discoveryin the civil law proceedings. They could be relevant inthat regard - when I say "relevant", it would reflect thefact that the impermissibility of having a hearing which isa domestic hearing in which matters to be before theSupreme Court in a civil action have also been or are alsoto be canvassed.
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Q. Thank you. I think it's fair to say --A. Would you excuse me, Mr Myers. Your Honour, inrelation to Watts v Hawke, I saw your remarks yesterday andhaving looked through it, I have looked through a fewcases, and with your permission I would provide that in amemorandum.
THE CHAIR: Q. I would welcome that, Mr O'Callaghan.Mr Myers, I'm sure you would appreciate the discussionthat's taken place in recent years about this issue, towhich I have contributed, Mr O'Callaghan, in New SouthWales.A. We don't regard New South Wales as foreign,Your Honour.
THE CHAIR: I'm pleased to hear that
MR MYERS: We do regard it as authoritative, too.
THE CHAIR: Q. What I think you will find is that thecritical questions are more refined than perhaps you mighthave assumed after the earlier decision. But I wouldwelcome anything you can give me about it.A. Thank you, sir.
MR MYERS: Thank you, Your Honour. Q. Mr O'Callaghan,I think it's fair to say that the suggestion was put to youin various ways today and also yesterday that you, far fromencouraging victims to go to the police, may have in factdiscouraged some of them from going to the police. What doyou say about that?A. Well, I want to reject any perception that I have atany stage sought to discourage people from going to thepolice, save in particular circumstances described. ButI would like to make it clear that I have a completeanathema for clerical child sexual abuses and I'm sure thisis shared by Mr Gleeson also. We would welcome peopletaking those miscreants to the court. I have endeavouredto ensure that being done and I advert to it in somepassages in my statement. But I certainly have a desirethat child abusers are brought to justice.
Q. Mr O'Callaghan, you have prepared two documents, bothdated 11 August 2014, entitled respectively, "Betrayal oftrust volume 1, comments on report of the parliamentarycommittee into the handling of child sexual abuse"?A. Yes.
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Q. And ditto volume 2. Why did you do that?A. I did it because I understood that the RoyalCommission had seen the reports of the parliamentarycommittee, my submissions and my evidence and on that basisI was concerned to make sure that there was a correction ofmany erroneous and damaging statements made in thosereports in respect of me.
Q. And thus you want to put before this Royal Commissionthose two documents?A. Yes.
MR MYERS: I ask that the Royal Commission accept thetender of those documents.
MS FURNESS: I don't propose to tender the documents,Your Honour.
THE CHAIR: I haven't seen them, Mr Myers. I have somebrief understanding. I'm not sure it's the role of thisCommission to comment, second-guess or otherwise pass anyjudgment in relation to matters that a parliamentarycommittee has done.
MR MYERS: If it be the case, and I accept of course whatyou say, Mr Chairman, that this Commission won't haveregard to anything that that parliamentary committee hassaid, then obviously there is no occasion to press for theCommission to receive these documents.
THE CHAIR: No. We are required by our terms of referenceto be conscious of work that others have done, and we are.In our planning in the work that we do we are endeavouringnot to cover the same ground as any other body may havecovered. We certainly have no intention of examining witha view to reaching any conclusions or being influenced inour own conclusions by the work that the parliamentarycommittee has done. So with that assurance, Mr O'Callaghanand Mr Myers, I don't think we should receive thedocuments.
MR MYERS: Thank you, sir. I have no further questions.
MS FURNESS: I have nothing further, Your Honour. Butperhaps the witness not be excused until he has providedthe various pieces of information discussed yesterday --
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THE CHAIR: I'm sure he will provide them and we knowwhere he is if he doesn't.
MS FURNESS: Not in terms of providing them, Your Honour,but in terms of coming back to give evidence if necessaryabout them.
MR MYERS: There is no doubt Mr O'Callaghan won't leavethe jurisdiction and he will come back if requested to doso.
THE CHAIR: Yes. Thank you, and thank you Mr O'Callaghan.
<THE WITNESS WITHDREW
MS FURNESS: Your Honour, Mr Stewart will take the nextwitness.
MR STEWART: Thank you, Your Honour. For the benefit ofothers, my name is Stewart. I'm counsel assisting theRoyal Commission and I call Richard Leder.
<RICHARD ALEXANDER LEDER, sworn: [12.16am]
<EXAMINATION BY MR STEWART:
MR STEWART: Q. Mr Leder, will you state your full nameand occupation?A. Richard Alexander Leder and I'm a partner at CorrsChambers Westgarth, solicitors.
Q. And that's based in Melbourne?A. Yes, sir.
Q. Mr Leder, I understand there are some amendments thatyou wish to make to your statement. If I can go to thosefirstly at page 25, paragraph 99?A. Yes. It's simply that the Ringtail document referenceat that paragraph of my statement is incorrect. Thecorrect reference has been provided to your solicitors.I'm happy to give it to you again if that's of assistance.
Q. It may be easiest if I just deal with it and you cancorrect me if I get it wrong.A. Thank you.
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Q. So four lines from the bottom, adjacent to where itsays tab 140, the reference should be CAR.0001.0005.00083?A. Yes.
Q. And at page 28, paragraph 115, in the fifth linethere's a sentence which begins "Initially I did not knowdetails of the history or the relationship", and so on.That should read, as I understand it, "Initially I did notrecall the details of", and so on; is that right?A. That's correct.
Q. And at page 41, paragraph 170, in the last line thereis a correction to the Ringtail reference. The third fieldshould be 0003 and the fourth field 0180; is that right?A. I have 0176 rather than 0180. I can't assist youwithout looking at the documents, but that is what I havenoted.
Q. In any event, in respect of that tab 203 do you knowwhether that's the right document that's actually in thetab?A. I would need to be shown. I don't have it with me.
Q. We can come back to that. Then finally at page 43,paragraph 181, in the last line the Ringtail referenceshould commence with CAR and not COM; is that correct?A. That's correct, yes.
Q. Are there any other amendments you wish to make to thestatement?A. No, there are not.
Q. You otherwise confirm it is true and correct?A. I do.
MR STEWART: I tender the statement, Your Honour.
EXHIBIT #16-7 STATEMENT OF MR RICHARD ALEXANDER LEDER,DATED 8/8/2014
MR STEWART: Q. Mr Leder, you served articles at Corrsin 1988; is that right?A. Yes.
Q. And you were admitted to practice as a solicitor inMarch of 1989?A. Yes.
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Q. And you have worked in the litigation and disputeresolution practice at Corrs since your admission topractice?A. Yes.
Q. And you were made a partner of Corrs in 1997; is thatright?A. That's correct.
Q. And Corrs have been the solicitors for the Archdioceseof Melbourne for more than 50 years; is that right?A. I believe so.
Q. And you started acting on behalf of the Archdiocese inabout 1992?A. Yes.
Q. At that time you were not yet a partner and the workthat you did was typically done under the supervision ofpartners Tony Darvall or Barry O'Callaghan; is that right?A. Barry O'Callaghan, yes.
Q. And Mr Barry O'Callaghan is no relative, as Iunderstand it, to Mr Peter O'Callaghan, who we had beforeus over the last two days?A. That's my understanding also.
Q. And with increasing seniority in your time at Corrsyou worked with an increasing degree of autonomy, is thatright?A. Yes.
Q. And the type of work you did for the Archdiocesevaried but included dealing with allegations of sexualabuse by clergy; is that right?A. That's correct.
Q. Could we go to page 2 of your statement, which shouldbe on the screen in front of you. Would you read paragraph4 out aloud?A.
In the early 1990s an increasing number ofplaintiffs issued civil proceedings inwhich they alleged that they were thevictims of sexual abuse by priests and
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other religious. Some of these proceedingswere issued by victims of priests who werenot from the Archdiocese of Melbourne(particularly Ridsdale from Ballarat) whileothers were victims of members of variousorders (particularly the ChristianBrothers). These proceedings sought tohold the Archbishop of Melbourne and otherentities associated with the Archdiocese ofMelbourne (or non-entities, such as "theCatholic Church in Victoria") responsible.Corrs defended a number of theseproceedings on various bases including thatthe relevant offender was not under thejurisdiction or subject to the supervisionof the Archbishop or Archdiocese. Fromabout 1992 I acted in a number of theseproceedings.
Q. Would you read paragraph 5 as well and that will bethe last one I ask you to read?A.
Other proceedings were issued by plaintiffswho alleged that they had been abused bypriests of the Archdiocese. The nameddefendants were similar to those listed inthe previous paragraph. The view was takenthat the defendants did not have legalresponsibility for the illegal acts ofpriests. Nonetheless, I recall that fromaround 1992 or 1993, support andparticularly funding for counselling wasprovided to victims through the PastoralResponse Office which operated under theauspices of the then Vicar General,Monsignor Cudmore. At the time, even thisinvolved controversy as there was concernthat providing counselling services may betaken to be some form of tacit admission ofliability.
Q. That concern referred to in the last line, do yourecall now where did that concern come from, whose concernwas that?A. I believe that it was a concern expressed to Corrs bythe Archdiocese.
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Q. And that was in the time of Archbishop Little, was it?A. Yes.
Q. In the next paragraph, paragraph 6, you say:
None of these proceedings against theArchdiocese [in which you acted] proceededto trial or to settlement prior to theestablishment of the Melbourne Response in1996.
Are you aware of - and approximate numbers will suffice -how many civil actions Corrs in Melbourne, in other wordsnot just yourself, was handling at that time for theArchdiocese?A. I think in the order of 30.
Q. And were most of those handled by yourself or --A. I don't know whether it was most, but certainly asignificant number.
Q. And you say here that, of those handled by you, nonehad reached settlement or trial. Are you aware whether anyof the others, in other words handled by your colleagues,had reached trial or settlement?A. I believe none did.
Q. If we can go to paragraph 10 on page 3 of yourstatement. You identify there that on 16 July 1996 it wasannounced that then Bishop Pell would be the new Archbishopof Melbourne and thereafter you became involved in a seriesof meetings and consultations in developing what was calledthe four point plan; is that correct?A. The Four Part Plan, yes.
Q. Sorry, Four Part Plan?A. Yes.
Q. And that was the Church's response to child sexualabuse?A. The Four Part Plan became the Melbourne Response, yes.
Q. And as I understand it, Mr Leder, you have been theArchdiocese's principal solicitor since - I withdraw that.You have been the Archdiocese's solicitor since the time ofArchbishop Little and right through to the present; is that
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correct?A. Yes.
Q. And in more recent times with your increasingseniority you have become, as I understand it, theArchdiocese's principal solicitor?A. In relation to sex abuse matters, yes, and variousother matters.
Q. And you were involved right from the outset in puttingthe Melbourne Response together in concept and subsequentlyin the running of it; would that be right?A. Yes.
Q. And over the years you then have also been involved inhandling the civil litigation in relation to child sexualabuse on behalf of the Archdiocese?A. Yes.
Q. Would you accept then that you are in a sense uniquelyplaced to give the Royal Commission insight into theMelbourne Response?A. I'm very happy to give whatever insight I'm able to.
Q. Thank you. Can we look at paragraph 19 of yourstatement. That's at page 6. In particular, towards theend you say that "various comments were received over thefollowing weeks from a variety of people, includingbishops, counsel, insurers and their lawyers, psychiatristsand counsellors". To your knowledge, were any victimsgroups or victims' representatives consulted in the processof putting the Four Part Plan together?A. I don't believe that I was involved in any suchconsultations directly, save for discussions with HelenLast and with an international expert from the UK,I believe, who was visiting Melbourne at around that timeand whom Ms Last arranged for me and others to meet.
Q. Perhaps you can explain what role Helen Last was in atthat time and why you regard that to be within the categoryof victims' groups or representatives?A. Helen Last's role, as I recollect it, was as avictims' advocate within the Vicar General's office.
Q. Was she not the coordinator of the Pastoral ResponseOffice?A. Yes.
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Q. And that in time gave way after the Melbourne Responsewas introduced?A. I'm not sure whether it gave way, but it certainlychanged in its function and in its responsibilities.
Q. Much of its work was taken over by Carelink?A. In relation to the coordination and provision offunding for counselling and treatment, its work was takenover by Carelink.
Q. And so the work that Ms Last did prior to theintroduction of the Melbourne Response at the end ofOctober 1996 was work for the Archdiocese to assist victimsof child sexual abuse; is that correct?A. Yes, but my recollection is that Ms Last and thePastoral Response Office were involved in the provision offunding for counselling and treatment for victims who cameforward. They were involved in coordinating the variouspastoral type activities such as meetings in parishes andin particular in the Oakleigh parish, but also elsewhere,as I recall. Ms Last also had other - carried out otherroles. Whether they were precisely under the auspices ofthe Pastoral Response Office or not, I would have toquestion, but she undertook other roles such as supportingvictims in court when there were prosecutions of offenders.I believe that on a number of occasions Ms Last alsosupported victims at mediations, without prejudice meetingsheld between a victim and parts of the Church other thanthe Melbourne Archdiocese and that Ms Last attended thosemeetings as a support person for the victim.
Q. She was employed by the Archdiocese?A. She was, or retained in some way, contracted.
Q. And the Pastoral Response Office wasn't an independentvictims' support group or representative group?A. No, it was not.
Q. And this international expert you mentioned, can youenlighten us with more detail in relation to that, perhapsa name?A. I believe that his name was Dr Ray Wyre.
Q. Other than those two possibilities that you mention,you are not aware, as I understand it, of other efforts toconsult with victims' groups or representatives?
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A. No. At that time I don't recall there beingparticular victims' advocates or victims' support groupsbeing identifiable in the way that they are now, with thepossible exception of Broken Rites, I think, was inoperation from the early 1990s. But when you speak ofconsulting with other victims' groups, my recollection isthat there weren't any.
Q. Are you aware whether it was a deliberate choice ormerely an oversight not to engage further with victims andrepresentatives?A. No.
Q. You are not aware; is that what you are saying?A. No, I think that the people that we were consultingwith, and particularly people such as Mr Joseph Santamaria,Mr Peter O'Callaghan and Mr Alex Chernov were allindependent Queen's Counsel who I would have seen and I didsee as providing independent perspectives.
Q. Independent of the Church, but you would accept notwith the perspective of those who had suffered child sexualabuse at the hands of the Church?A. I would have expected from their experience,particularly Mr O'Callaghan's experience and Mr Chernov'sexperience and Mr Santamaria's experience as well, thatthey had all acted both for plaintiff and defendant in arange of matters.
Q. I understand from the announcements that were made atthe time that, amongst other things, the system wasintended to assist and support victims?A. Yes.
Q. Would it not then have been logical and appropriate toconsult victims on what they needed or expected?A. I understand your question and, with hindsight, I cansee that some wider consultation could have beenbeneficial. But certainly at the time my feeling was,personally at least, that from the discussions with Ms Lastand from the discussions with Monsignor Cudmore and fromdiscussions with other welfare organisations such as theCatholic Family Welfare Bureau that we were hearing atleast second-hand the perspective of victims and of whatwas then seen as best practice for providing assistance tovictims.
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Q. Can we look at paragraph 22 of your statement onpage 7. You will see in the fourth line there's a sentenceas follows, "I was informed that other people were urgingthe Archbishop and Mr Exell" - that's the then businessmanager; is that correct?A. That's correct.
Q. Of the Archdiocese, "that parishioners did not 'putmoney in the plate' each Sunday in order to pay for thecriminal acts of priests." Was that a widespread view, areyou aware?A. I don't know whether it was a widespread view. I havea clear recollection that it was a view with whichArchbishop Pell strongly disagreed and, to the extent thatit was a widespread view, it was a widespread view that didnot receive a lot of oxygen in the meetings with him.
Q. So am I to understand you to be saying that it's not aview that had influence in the deliberations around theestablishment of the Melbourne Response and its structure?A. That's correct.
Q. Are you aware who the people were who held that view;in other words, parishioners, bishops, people within thehierarchy of the church; do you know?A. I think, as best as I can recollect, all of them. Allof those categories - there would have been those viewsheld in all of those categories of people.
Q. If we can just scroll up to paragraph 21. In thatparagraph, in the middle of the paragraph approximately,you say that Professor Ball was identified as someone withappropriate qualifications and experience to head up whatbecame Carelink. At that time did you, Mr Leder, know thathe had given expert evidence in mitigation of sentence forconvicted perpetrators of child sexual abuse?A. I don't recall.
Q. At that time did you know that Professor Ball had inhis professional capacity treated priests who had beeninvolved in either child sexual abuse or other sexualindiscretion and impropriety?A. As best as I recall, I did know that Professor Ballhad been involved in the treatment of sex offenders. Butthat experience was seen as being relevant and beneficialto the role that it was proposed that he hold.
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Q. Why did you or perhaps if you are speaking about thepresent why do you see that as being relevant experiencewith regard to dealing with victims in the capacity ofdirector of Carelink?A. For several reasons. I think first, and perhaps thisreflects my experience as a lawyer, but I thinkunderstanding both sides of an issue or a problem ishelpful, as a general matter. I think also that I can sayin my dealings with Professor Ball he was very helpful tome in assisting my understanding of the pernicious natureof paedophilia and in particular the fundamentaldistinction between adult sexual attraction and paedophilicattraction. He was able to explain to me that while thefact - I'm sure I don't do justice to him in providing thisexplanation, but while the fact that an adult is sexuallyattracted to another adult doesn't mean that that adult issexually attracted to everybody, it's the nature ofpaedophilia that if a paedophile is attracted to one childit's entirely probable that they will be indiscriminate.
Q. I understand from what you say at the end of thatparagraph which is before you that you were involved in,with others, a discussion with Professor Ball in thelead-up to his appointment; is that right?A. Yes.
Q. Was he asked, do you know, whether there was anythingin the work that he had done which might pose an obstacleto his acceptance of the position or his appropriateness toaccept the position?A. I don't recall, but I expect that he would have been.
Q. Are you aware whether any other candidates beyondProfessor Ball were considered for the position?A. I believe that there were others. I don't now - inpreparing my statement I did reflect on that and I don'thave any recollection of who they were specifically. ButI do believe that I attended - either that I attended ameeting or meetings or that there were discussions withsome other candidates or that I attended a meeting - atleast I think that I attended a meeting where othercandidates were - the names of other candidates wereproposed and discussed. I have a dim recollection of that.
Q. And at the end of the day was it the position thatProfessor Ball was considered to be the most appropriatefor the job or was it the position that the other
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candidates were regarded as not appropriate for the job?A. It's the former, that Professor Ball was consideredthe most appropriate candidate or the standout candidate,and therefore to the extent that there was a considerationof others that consideration was not pursued.
Q. But there would have been others who would also havebeen appropriate?A. Oh, yes, I'm sure there would have been.
Q. Later when this issue of Professor Ball's positionarose with the Fosters you will recall that you recognisedthat the Fosters' concern with having to deal withProfessor Ball had to be respected?A. Yes.
Q. And you said on another occasion that you couldunderstand the Fosters' reaction to having to deal withProfessor Ball?A. Yes.
Q. And at the time that Professor Ball was appointed wasit not appreciated that there might be victims who wouldhave that reaction which you recognised needed to berespected?A. Yes, and it was contemplated that alternativearrangements would be made, as I recommended occur in thecase of the Fosters.
Q. So you are saying that that contemplation existed evenprior to the establishment of the Melbourne Response?A. I believe so.
Q. Dealing with the cap on compensation, if I can showyou paragraph 25 on the following page of your statement.You will see that in the third line you say that your"recollection is that the Archbishop" - that's ArchbishopPell, I take it?A. Yes.
Q. "... was not entirely comfortable with the impositionof a cap". Did the Archbishop explain what hisreservations were?A. As best as I recall, the Archbishop's position wasthat, legal liability or no legal liability, payments oughtbe made to victims and that when it was suggested thatthose payments might be capped in some way he was initially
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uncomfortable with that.
Q. Yes, that's what you have said in your statement. Thequestion I'm asking or what I'm seeking to have answered isdid the Archbishop explain why he was uncomfortable withthat; what was the nature of his reservation with regard toa cap?A. As best as I recall, it was simply the existence of acap was something that could be seen as a negative.
Q. And in the next sentence in that paragraph you saythat an uncapped liability was to some extent inconsistentwith the absence of legal liability?A. Yes.
Q. I take it that you are stating your opinion in thatsentence?A. My opinion and no doubt the explanation that was givento the Archbishop.
THE CHAIR: Q. Mr Leder, there are a couple of questionsI have about this. It's plain that this discussion startedfrom the point where the Church accepted that money shouldbe paid; correct?A. Well, Your Honour, I think the discussion - I agreewith Your Honour, but if I could answer the question --
Q. That's the first proposition --A. -- this way; that as part of a range of measures thatwould be provided to victims, yes.
Q. Well, yes. But there was an acceptance that moneyshould be paid?A. Yes.
Q. And that acceptance or accepting that position -sorry, that decision was made with advice from you thatthere was no legal liability?A. Yes.
Q. So that you were involved in discussions where, ithaving been agreed no legal liability, it was neverthelessagreed that it was appropriate that money should be paid tovictims of abuse by church persons?A. Yes.
Q. Now critical to that decision of course is that the
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Church accepted that the abuse was occasioned by one oftheir persons?A. Yes.
Q. Now, the understanding that you have given us in thesubsequent paragraphs is that the amount of money that wasaccepted as appropriate for the cap was defined byreference to statutory schemes of universal application?A. I wouldn't agree that it was defined by that,Your Honour. The cap - as I have sought to explain in mystatement, the cap was set having regard to a number offactors, including the absence of legal liability, therecognition by the Church that it ought nonetheless makepayments, a need to have some mechanism for quantifyingthose payments, and a need to have some view about wherethe quantum of those payments ought sit. So it was all ofthose factors together.
Q. At paragraph 27 you make plain what you were lookingat?A. Well, yes, Your Honour. But there were precedingconsiderations. So as I have sought to explain fromparagraph 23 of my statement on was that the first questionwas, "What sort of methodology ought be employed in orderto assess compensation and whether or not it be" --
Q. No, let's come back to my question. What you werelooking at in defining the cap was the statutory schemesthat had been provided which were schemes of universalapplication?A. Yes, yes.
Q. That's what you were looking at?A. Yes.
Q. And Cardinal Pell has already told us that he seesthat as the appropriate place to look?A. Yes.
Q. Now, you understand, though, of course that there isno question of legal liability in relation to a statutoryState scheme for victims of crime, is there?A. That's sometimes but not always the case, in my view,Your Honour.
Q. The entitlement to compensation under statutoryschemes for the victims of crime comes irrespective of
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whether the State had a responsibility?A. Yes.
Q. If the State had a responsibility you can sue them atcommon law for damages; correct?A. That's correct.
Q. So this is universal - a scheme of universalapplication without any consideration of whether the Statehad any part at all to play in the crime that resulted inthe damage to the individual?A. The application of the scheme is such, yes.
Q. The entitlement to be paid comes irrespective ofwhether the State had any relationship to the crime thatwas committed?A. Yes. My understanding would be, though, that indetermining the amount of compensation regard might be hadto the role of the State. That's my understanding.
Q. Well, we would go over old ground if I were to say toyou if the State had a responsibility you can sue them atcommon law?A. Yes.
Q. We have to look at, amongst other things, a redressscheme. Do you think that it is appropriate to apply theframework, financial framework, that such a statutoryscheme provides available to any member of the communityirrespective of any relationship between the crime and theState to a crime committed by a person from the Church upona child who was entrusted to the Church's care? Do youthink it's appropriate to go to the statutory scheme andsay, "Well, that's what that provides therefore this iswhat the redress scheme should provide?"A. My view is that one would look at statutory schemesand see that as a minimum, and that one starting pointwould be plainly one would not go beyond that. Myexpectation would be that one would go above that, as theMelbourne Response sought to do. So I would see it as aminimum, but not as defining what a redress scheme oughtdo.
Q. I didn't understand the Melbourne Response to gobeyond the statutory arrangements, did it?A. Well, it did, Your Honour, in several respects. Firstbut principally the crimes compensation scheme at that time
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had a maximum of $50,000 all-in.
Q. That's what was defined by the Church's scheme?A. With respect, no, Your Honour, because under thestatutory scheme that was inclusive of treatment andcounselling costs, and another component of the MelbourneResponse was uncapped indefinite treatment and counsellingfor as long as required.
Q. So that's the difference you see, is it?A. Yes, Your Honour.
Q. Okay. Do you accept that $50,000 would fall wellshort of what any common law claim might be in many cases,notwithstanding the fact that counselling was paid for?A. Yes, I do. Yes.
Q. And do you accept that seeking to grade theentitlements between nought and 50,000, given the range ofdamage that we know occurs to people lifelong, is anartificial exercise?A. I don't understand Your Honour's use of the word"artificial".
Q. You know of the range of very great damage that can beoccasioned to individuals by reason of abuse when they arechildren, don't you?A. Yes.
Q. And to distinguish what is a $20,000 claim from whatis a $40,000 claim, given the severity of harm that can beoccasioned along the spectrum, is an artificial exercise,isn't it?A. I don't agree with that, Your Honour.
Q. You don't? So you think it is possible to say it isjust to someone, "You get $20,000, and it is just that youget 40," and the worst case only ever achieves 50?A. Well, Your Honour, I really can't answer that questionwithout going back to the underlying question of whetherthere is legal liability or not and to ask myself, "Well,how would this case be assessed in a court and what factorswould a court have regard to?" I absolutely accept thatwere liability and causation and so on established then inthat sense the quantum would be significantly higher.
Q. It may be difficult for you to think outside that
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framework. This whole discussion proceeds from theassumption that the Church is not legally liable; wediscussed that at the beginning?A. Yes.
Q. But, nevertheless, the Church accepts responsibilityfor the damage occasioned by one of its persons to a child?A. Yes.
Q. So do you think it's really appropriate to thenintroduce - reintroduce later the legal issues when one islooking at what might be a just response given the range ofvery great damage that can be occasioned to children?A. I think, Your Honour, that in setting the parametersof any redress scheme, be it capped or uncapped, that onehas to have regard to all of those factors. I don't thinkthat one can meaningfully look at the question of redressin isolation of all of those factors.
Q. Some people, many people, have said to us that theamounts of money that were provided as a lump sum are tokenamounts. What do you say to that?A. I would say that when the amount was set in 1996 itwas set in a way that I have explained. I would say thatas things stand today it is clear that for some victims theability to receive only up to $75,000 in lump sumcompensation indicates that, that the compensationcomponent of the Melbourne Response is not achieving theobjective that was set out - it was set out to achieve interms of delivering a recognition - a financial recognitionof the harm, and I'm absolutely supportive of thecommitments that the Archbishop has made to review thosematters.
MR STEWART: Q. Mr Leder, you say in that paragraph wewere looking at which is before you, paragraph 25, that anuncapped liability was to some extent inconsistent with theabsence of legal liability. Why is that? Can you explainwhy it is inconsistent?A. I think it is inconsistent in the sense that if thereis - Your Honour, I'm going to go over the ground thatI have just gone over with Your Honour, and I apologise forthat. But in answering the question if there is no legalliability then there is always room for someone to say, "Ifthere is no legal liability then I will not pay you."That's not to say that that was the Church's position, butrather that in deciding where the appropriate compensation
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was seen to be set it was not irrelevant that there was nolegal liability.
Q. To say that it's not irrelevant is not the same assaying there is, albeit in your words to some extent, aninconsistency between the two?A. Well, I think there's an inconsistency to the extentthat one says and only to the extent that one says that ifthere is no legal liability then one ought not pay, andthat was not what was being said but that's what I mean bythat paragraph of the statement.
THE CHAIR: Q. No, but as I understand it, because therewas no legal liability, it was accepted that a lesser sumthan might ever be achieved if there was legal liabilitywas appropriate?A. Yes, Your Honour.
Q. So it influenced the amount?A. Yes.
Q. Recognising that the amount could not truly meet theneed that some people might have?A. Yes, Your Honour.
MR STEWART: Q. You said that the Archbishop wasuncomfortable with there being a cap. Of course one of thethings that could have been done would have been for theArchbishop to say that this scheme will accept anobligation to pay as if the Archbishop was in the sameposition as any other employer whose employees committedtorts?A. Yes, that could have been done.
Q. And, that being one of the options on the table whichwould have paid the full amount of common law damages, canyou explain why that option wasn't an option or the optionthat was adopted?A. I think there's two components to your question. Thefirst is the question of whether the intent was to paydamages assessed as though they were common law damages onthe basis that liability was present, and that was not thedecision taken.
The second question is, given a desire to have aprocess for working out an amount of money to be paid, whatought that process be and ought that process be some sort
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of arbitral panel, some sort of mediated process, in otherwords a process where there was an applicant forcompensation and a payer of compensation and either anadjudication or a negotiation or mediation of some sort or,as was ultimately decided, to have an independentassessment made without the Church being presentcontradicting or cross-examining or challenging thevictim's account.
THE CHAIR: Q. Mr Leder, I think the difficulty which wewill have to grapple with comes from the fact that, nolegal liability, common law damages can't happen; butwhether it's appropriate to then pitch the entitlementwhere you pitch it or where the State has pitched it - inNew South Wales now a maximum of $10,000 --A. Yes.
Q. -- for statutory victims of crime where there isabsolutely no necessary relationship between the State andthe person who is damaged, whether it's appropriate to goto that position is a live question. I understand what youdid back then, but I'm sure you understand now why that maynot be where you should go?A. Yes, well, Your Honour, I think back then it was seenthat the statutory scheme suggested a minimum level abovewhich the Church sought to operate and above which theMelbourne Response has sought to continue to operate. So,as I said before, I don't suggest that the statutoryschemes provide the appropriate levels to pitch a redressscheme. I think they set a floor above which the redressscheme ought operate, and the question as to how far aboveis absolutely a live one.
Q. We will ask Cardinal Pell about this tomorrow, but myunderstanding has always been that he has seen himself asadopting schemes that reflected the states' position; inother words, what the states have done was the appropriateway to go?A. All I can say in response to Your Honour is that backin 1996 in Victoria the crimes compensation maximum was50,000, as I said, of which 20,000 was the maximum for painand suffering and the remaining 30,000 was reimbursement ofmedical and like expenses. That's my understanding. So inthat sense the valid comparison is between 20,000 under thestatutory scheme and 50,000 under the Melbourne Response.
THE CHAIR: Yes. We might take the luncheon adjournment.
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<THE WITNESS WITHDREW
LUNCHEON ADJOURNMENT
<RICHARD ALEXANDER LEDER, recalled: [2.00 pm]
THE CHAIR: Yes, Mr Stewart.
<EXAMINATION BY MR STEWART:
MR STEWART: Q. If we can take a look at paragraph 26 ofyour statement, Mr Leder. You say there that the figure of$50,000 was settled on relatively quickly. Who proposedit?A. Who proposed - I don't recall specifically whoproposed it.
Q. Was any budgeting or forecasting done in order toarrive at an appropriate cap?A. No, not so far as I know.
Q. Were any actuarial calculations done?A. Not so far as I know.
Q. So am I to understand you then that no budgeting orforecasting in relation to how much might have to be paidwas done?A. Not so far as I know.
Q. And nor how much it might cost to run the scheme?A. Again, not so far as I know.
Q. So are we to understand that affordability was not aconsideration in arriving at a cap?A. That's correct.
Q. If we could look at tab 13. This is, as it were, theculmination of a number of different drafts of the FourPart Plan and this is the one that was ultimately announcedon 30 October 1996; is that right, Mr Leder?A. Yes.
Q. What I intend doing is looking at each of thecomponents of it and we will have a discussion of each ofthose and we will keep coming back to this document. Sostarting then on page 2 and at paragraph 2, one of the
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components is obviously the Independent Commissioner. Inyour understanding at this time of the conceptualisationand adoption of this scheme, the reference to independencethere is an independence in what sense?A. An independence from the Archbishop and theArchdiocese.
Q. And what were the considerations in that independencebeing seen as important?A. Well, I think they were seen as being completelyfundamental and really reflected - had been reflected inall of the discussions that I had been involved in withArchbishop Hart since I first met him in late July 1996,that the proposition was and is that there ought be aninvestigation of allegations independent of the Church.
Q. And I take it by your use of the word "investigation"you are including also a decision on the allegation?A. Yes.
Q. So one sense of independence might be independent ofexternal influence in decision making; that was part of it,I take it?A. Yes, it was.
Q. Another sense of independence might be structurallyindependent?A. Yes.
Q. Was that another component to the independence?A. Yes.
Q. And of course another would be the perception ofindependence. That would be important too, in other wordscomplainants perceived and understood the IndependentCommissioner to be independent of the Archbishop and theArchdiocese?A. Yes.
Q. If we can just do a brief excursion backwards to tab9. A few days earlier you had done a brief comparison ofthe emerging Towards Healing document and the MelbourneResponse document as it was at that time; is that right?A. Yes.
Q. And this table sets out your points of comparison; isthat right?
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A. Yes.
Q. And in point 4 you will see under the left-hand columnwhich is headed "National document" which was obviously theTowards Healing document; is that right?A. Yes.
Q. It refers to clause 3.4 which defines contact personsto receive complaints, which are then assessed byassessors, and then in the right-hand column, which is thecolumn for the Archdiocese's Four Part Plan, it recordsthat it is "to ensure the independence of the Commissioner,the initial complaint is received by his office.Assessment is performed by him." You see that?A. I do.
Q. I take it you shared the view that that part of theMelbourne Response was preferable to the Towards Healing?A. I did. But I see merits in both. I can absolutelyunderstand the proposition that for people to go and see aQC is confronting. I can also understand that to have totell your story or part of your story to a contact personand then have to tell it again to an assessor is difficultfor a victim. So I can see merits in both. But ultimatelymy personal view was that, so long as the right person waschosen as Independent Commissioner, that it was preferableto have a system that hopefully required the victim to onlyhave to tell their story once.
Q. As I understand it, the way in which the TowardsHealing system has played itself out, and you can tell mewhether you are aware of this or not, it is sometimes thecase that the contact person records the story for theassessor and that it is not then necessary for the victimto retell the story to the assessor?A. I'm sure that occurs on some occasions. Certainlyback in 1996 what was anticipated was that there would bemany more contested hearings than there were, and it doesseem to me that if there is a contest, so if the accusedpriest is denying the allegations, then it would bedifficult for the assessor or Independent Commissioner,whoever it is having to decide on the validity of thecomplaint, to make that decision without hearing directlyfrom the victim. I think it would be difficult to resolvethat sort of contest based on - based only on writtenstatements.
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Q. Yes. Well, that's a matter I will come back to. Butjust while on this question of making the decision, at thetime that the Melbourne Response process was adopted hadconsideration been given to the standard of proof thatmight be applied by the Independent Commissioner in makinga decision?A. Not so far as I can remember, no.
Q. So would it be right that that was essentiallysomething left to the Independent Commissioner?A. Yes.
Q. And we have heard Mr O'Callaghan's evidence inrelation to that?A. Although if I may, having said that, one of the thingsthat was being considered at the time was how theIndependent Commissioner process sat within Canon Law and,as best as I can remember, I did have some understanding ofthe standards of proof required by Canon Law. So I thinkthat we were - without necessarily having a vision of theentire way through this difficult issue, it was seen asimportant or relevant - at least relevant to think abouthow the findings of the Independent Commissioner would havestatus or relevance at Canon Law.
Q. While on the subject of Canon Law, the IndependentCommissioner's process was seen as fulfilling the role of apreliminary investigation under Canon 1717; is that right?A. Yes.
Q. If we can go to tab 1, and scroll down to look atCanon 1717, number 1. "Whenever an ordinary" and anordinary in this case is a reference to the Archbishop?A. Yes, I believe so.
Q. "Has knowledge which at least seems true of a delict"and a delict would be in this context a crime?A. Yes.
Q. "He is carefully to inquire personally or throughanother suitable person about the facts, circumstances andimputability, unless such an inquiry seems entirelysuperfluous." So that's the threshold, as it were, to geta preliminary inquiry going, is that there is informationor knowledge which at least seems true?A. Yes.
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Q. And then there are various other provisions, and insub 3, "The person who conducts the investigation" - thatwould be the Independent Commissioner, am I right?A. Yes.
Q. "Has the same powers and obligations as an auditor."That is a reference to a judge within the Canon Law system?A. I don't know, but that does seem to make sense.
Q. And then in 1718, number 1, "When it seems thatsufficient evidence has been collected, the ordinary is todecide", and then there are three options that are set out,"whether a process to inflict or declare a penalty can beinitiated; or whether, attentive to Canon 1341, this isexpedient; or whether a judicial process must be used; or,unless the law forbids it, whether the matter must proceedby way of extra judicial decree." So they are the optionsthat become available to the ordinary once sufficientevidence has been collected. If we can go over to the nextpage. So, in 1717 itself there isn't a standard of proofparticularly, as I see it. Do you have a differentunderstanding?A. I would agree with you that looking at 1717 it doesn'tseem to say that, or it doesn't say that. But I don't knowwhether there are other provisions of Canon Law that wouldimpose a standard of proof. I have an understanding thatfor certain Canon Law purposes a standard called moralcertainty is required and I have been told byMr O'Callaghan that his understanding is that that isequivalent to beyond reasonable doubt in our system. ButI'm really far from being an expert on these matters.
Q. And that would be in the event that the ordinaryexercising a decision under Canon 1718 decides that therebe a penal process; in other words, a canonical, judicialprocess, then that standard would apply. But if you don'tknow --A. I really don't know.
Q. I have had the benefit of having to do a whole hearingon Canon Law as the Commissioners have had to hear about ittoo?A. I really can't. I really don't know.
Q. Would it be right, then, that you don't know thatCanon Law generally does not know an oral process, what wewere told previously, that even in the judicial stage it
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deals with matters on the documents, including swornstatements or affidavits, and decides on that basis?A. I have been told at some point by a Canon Law adviserthat one of the practical difficulties of seeking to imposea Canon Law penal process to adjudicate on an allegation ofsex abuse is that the victim and the offender would need toconfront each other. So I did have an understanding thatthere would need to be an oral hearing with a panel ofpriests sitting as judges, and from my perspective I couldsee that that - that strikes me as a quite inappropriateway of trying to allow a victim to prove their case. SoI do have an understanding that somewhere along the linethere is an oral hearing, but I may be wrong about that.
Q. I'm not at all sure that's consistent with what welearnt in a previous hearing, but we can put that aside forpresent purposes. That's not something that has to beresolved by any means in this hearing. You have said thatfrom the outset it was anticipated that there would becontested hearings in the event that the accused priestdenied the allegations?A. Yes.
Q. Was some other way or process to resolve disputes suchas that considered; for example, an investigative processrather than an adjudicative process?A. No, I don't think so. I think that one of the thingsthat was really absolutely fundamental was for there to bea way of dealing with allegations that either didn't go tothe police or hadn't gone to the police or had gone to thepolice but that hadn't resulted in an outcome, andI suppose it was - I suppose it was anticipated that therewould be situations where victims made allegations and theaccused priest denied them and as best as I recall the viewwas that that contest was best dealt with in an oralhearing along the lines, as Mr O'Callaghan said yesterday,along the lines of a Magistrates' Court summary hearing.
Q. Am I to understand you to be saying that analternative process wasn't consciously considered?A. That's my memory, yes.
Q. That as lawyers schooled in the common law tradition,it would be - our first point of reference would be to havea mock trial or a mini-trial?A. Yes, a mini-trial, yes.
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Q. Are you aware that in the Towards Healing process veryoften these matters are dealt with by an investigator whoactively investigates and then comes to a finding which theArchbishop then considers?A. I am. I am aware of that.
Q. Do you have thoughts as to the pros and cons of thosecompeting processes?A. I do. I think one of the challenges that both systemshave is on the one hand to deliver support and assistanceto victims, but on the other hand to remember that when avictim makes an allegation against a priest who isotherwise alive, well and in ministry, that can be careerending for the priest, and that there therefore does needto be a process - in cases where there's a conviction orthere's an admission by the accused this isn't a problem -but in the situation where you have someone not otherwiseaccused who's operating as a priest, the allegationsagainst them are clearly very serious and there needs to bethe best system available for trying to determine truth andI suppose, as you said, with the perspective of ourAustralian legal system we see that as being a hearingwhere there's oral evidence and the right to test evidencewith cross-examination.
Q. Another consideration, aside from the important oneyou have mentioned, of course, would be one of cost.That's a costly process to have a hearing of that naturepresided over by a senior silk and so on; would I be right?A. It certainly comes at a cost.
Q. But in deciding how to go ahead with the MelbourneResponse process, cost wasn't an issue particularly, asI understand it?A. That's correct.
Q. I'm just trying to understand the way in which such ahearing would be conducted. The Independent Commissionerhimself, and we will come to this in a minute, would bebriefed in a formal sense by you, am I right?A. I don't brief the Independent Commissioner separatelyin relation to a contested hearing, no.
Q. I wasn't meaning to imply that. I mean at theoutset --A. In 1996.
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Q. He took a brief from Corrs?A. Yes.
Q. To be the Independent Commissioner?A. That's correct.
Q. And then when the need for an oral hearing arose therewas then another barrister appointed, typically Mr Gleesonas I understand it, to act as counsel assisting?A. Yes.
Q. And would there then be a separate brief to that, atthat time, junior barrister?A. I briefed Mr Gleeson in 1997 and it was really, if youlike, an ongoing brief to act as counsel assisting asrequired in matters as arose and as requested by theIndependent Commissioner, and that would occur withoutreference back to me often.
Q. And in the presentation of the case, who would counselassisting be taking instructions from?A. I had no involvement in that.
Q. I suppose I will ask Mr Gleeson about this in duecourse, but, insofar as you know, would counsel assistingtogether with the Independent Commissioner essentially beleft to independently determine what would be investigatedand how the evidence would be presented and how the casewould be run?A. Yes.
Q. Because you would appreciate the disadvantage in aprocess that left essentially the complainant to puttogether a case of evidence against a priest without activeassistance from counsel assisting and potentially theIndependent Commissioner who has been appointed toinvestigate it?A. I would understand that and that is the precisepurpose for having counsel assisting.
Q. If we can go back to tab 13, this time at paragraph2.4. Firstly in relation to the first bullet point whichdeals with the terms and conditions of appointment of theIndependent Commissioner, where it states that:
Immediately upon a complaint of sexualabuse being made to him, the Commissioner
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shall inform the complainant that he or shehas an unfettered and continuing right toreport the matter to the police.
These terms had been discussed with the police before theywere adopted and announced; is that right?A. Yes, that's right.
Q. And this is one of the things that the police hadasked or said should be part of the terms and conditions?A. I think that first point was in our - it was in theproposal that we took to the police and it was the secondpoint, the encouragement of the exercise of that right, wasthe input from Assistant Commissioner Brown.
Q. And then in the fourth bullet point on the screen itsays:
The Commissioner will respect obligationsof confidentiality imposed on him bycomplainants to the maximum extentpermitted by law. Except where thoseobligations preclude him from so doing, hemay, if he considers it appropriate, reportmatters to the police.
Questions or obligations of confidentiality were then alsoset out in the Independent Commissioner's terms ofappointment; is that right?A. Yes, that's right.
Q. So if we go to tab 36 you will see that's theappointment of the Independent Commissioner and his terms,which changed slightly on subsequent occasions, but dealingwith them as they were originally. Then particularly onpage 4 we have a look at paragraph (x) at the foot of thepage:
The Commissioner shall treat asconfidential and privileged all informationacquired by him in the course of hisinvestigation, provided that (subject tosubclause (1)(xi)) the Commissioner may, ifhe considers it appropriate so to do,provide the whole or part of suchinformation to the police and with theconsent of the complainant to the
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Compensation Panel.
And then if we look at the next paragraph, paragraph (xi),and it states:
If a complainant, prior to stating thefacts and circumstances constituting his orher complaint informs the Commissioner thathe or she is only prepared to divulge thosefacts and circumstances to the Commissionerupon his assurances that he will not,(unless required by law) disclose thosefacts and circumstances to any person otherthan a person nominated by the complainant,the Commissioner (unless required by law soto do) shall not disclose those facts andcircumstances to any other person save tomembers of his staff from whom he shallhave procured an undertaking ofconfidentiality.
From this we are to understand, of course, thatconfidentiality was given a high premium in theestablishment of this scheme?A. Yes, to the extent that it's requested by thecomplainant, yes.
Q. And as you understand paragraph (x), perhaps we canjust scroll up again to the beginning, "The Commissionershall treat as confidential and privileged all informationacquired by him in the course of his investigation", inpreparing and being part of the process of preparing andadopting this scheme, how did you understand that?Confidential to whom?A. I think the context is that he was appointed toinvestigate and to report to the Archbishop and theCompensation Panel as appropriate, and to interact withCarelink as appropriate. So I understand theconfidentiality as permitting him to report to theArchbishop and the Archbishop's agents and so on,permitting him to report to the Compensation Panel wherethat consent was given as part of the application forcompensation, and permitting him to deal with Carelink, butotherwise to treat the information as confidential so thatif, for instance, someone else sought information from him,he could only provide that information if he was subpoenaedor ordered to do so.
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Q. Let's break that down a bit. Clearly it includesconfidentiality - within confidentiality would be theCommissioner himself and his immediate staff and presumablyalso any counsel assisting appointed from time to time.That would be uncontroversial?A. Yes.
Q. Then the Compensation Panel of course is excluded, inother words the Compensation Panel is a body to whom theinformation must not be given unless consent has beengiven?A. That's right.
Q. Although Carelink is not mentioned specifically inthis clause, the practice was to acquire a specific releaseto give the report to Carelink too; am I right?A. Yes, that's right.
Q. It's not immediately obvious to me why the Archbishopand his agents, by which I take it you would be principallyreferring to yourself, why they should be included; inother words, that the Commissioner would be open to givinginformation to them?A. I'm including also the Vicar General when I think ofagents. But there would be - it would be inconsistent withthe appointment of the Independent Commissioner for him toinvestigate a complaint, conclude that a priest was guiltyand then not be able to tell the Archbishop about it. Thewhole point of his appointment in that regard was so thathe can report to the Archbishop and recommend action.
Q. A distinction may be drawn, I suppose, between thefindings of the Independent Commissioner and more generallythe information that he acquired?A. I agree, and I think I'm speaking particularly of thefindings and the recommendations and I don't think it'snecessarily easy to draw an immediate - an obviousdemarcation always because as part of the - the findingsare more than guilty or not guilty. The findings mustnecessarily include some account of the circumstances, sowhen it happened, where it happened and so on.
Q. There's another place where this may be furtherillustrated, and that's at tab 18 in your memorandum tocounsel in the original appointment of Mr O'Callaghan on11 November 1996. If we scroll down that, familiarise
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yourself with it. But in particular the third paragraphthat commences:
With this memorandum and the attachedbacksheet, we confirm that your appointmentas Commissioner is made by us on theArchbishop's behalf, and that yourrelationship with the Archbishop is one ofbarrister and client.
I will get to paragraph 4 in a minute, but as far as wehave got, that would of course in the ordinary courseinvolve any knowledge gained by the barrister is to befreely given to the client?A. Yes, I agree.
Q. And then in paragraph 4 that's then qualified, and wecan have a look at that:
Because of the sensitive nature of some ofthe information that you will receive inyour capacity as Commissioner, and the needfor confidentiality to protectcomplainants, our client recognises thatyou may wish to keep information anddocuments that you receive or createconfidential to yourself and such otherpersons as you select. Accordingly, youare briefed on the express basis that allinformation and documents that you receiveor create in your capacity as IndependentCommissioner are your property, and willremain your property at the conclusion ofyour retainer. Our client waives anyrights that he may otherwise have to suchproperty.
So that's perhaps starting to draw the line betweenfindings and other information?A. Yes, and it's also reversing the ordinarylawyer/client information flow.
Q. And the great relief of a barrister to send everythingback at the end of a case, whereas here Mr O'Callaghan hasbeen told to keep it and it's his property?A. Yes.
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Q. And then in the fifth paragraph, if we can scroll downa bit more:
However it may be that for us to fulfil ourrole as instructing solicitors, there willbe matters that you wish to disclose to us.We agree to receive such information inconfidence, and will be happy to provideformal confidentiality undertakings at yourrequest.
Firstly in relation to that, were you envisaging that atthe Independent Commissioner's request you, the solicitors,would keep whatever he's given to you confidential evenfrom your client?A. Yes, yes.
Q. And that of course does happen in other contexts oflitigation?A. Yes.
Q. Did it ever happen in your experience through theyears of the Melbourne Response where such a circumstancearose where the Independent Commissioner made informationavailable to you but only on your assurance to keep itconfidential to yourself?A. Yes.
Q. It did arise?A. It did.
Q. Can you give us a sense of the circumstances in whichthat arose?A. Yes, most recently it has arisen in relation to thisRoyal Commission and in relation to the parliamentaryinquiry, that my firm has been provided with informationand in particular the information that permits thecompilation of the statistics to which Mr O'Callaghan hasreferred, and there are confidentiality undertakings thatI and other lawyers from Corrs have given which clarifythat we hold that information for Mr O'Callaghan and notfor the Archdiocese.
Q. So when Mr O'Callaghan gave evidence that his fileshave now all been put on Ringtail and they are availablefor access at Corrs, it would be under that arrangement,would it?
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A. Yes, expressly under that arrangement.
Q. If we can revert to Canon Law briefly and back to tab1. On the second page, Canon 1719 you will see says:
The acts of the investigation, the decreesof the ordinary which initiated andconcluded the investigation, and everythingwhich preceded the investigation are to bekept in the secret archive of the curia ifthey are not necessary for the penalprocess.
Now, would you agree what this envisages is that anordinary, an Archbishop in this case, would have an archiveto keep these classes of documents?A. That's what the words appear to mean.
Q. And the acts of the investigation are the documentscreated or presented and provided during the course of theinvestigation?A. I don't know. I don't know what "acts" means.
Q. Was there any consideration, to your knowledge, of howto reconcile this requirement of Canon Law and the ideathat the files created by the Independent Commissioner inhis investigation would remain his property andconfidential, at least to some extent, to him separate fromthe Archbishop?A. As best as I recall, we really didn't consider Canon1719 and as best as I recall I really only - it's possiblethat I have seen it at some previous time, but I reallyonly became aware of its provisions yesterday whenMr O'Callaghan was being asked about this.
Q. Perhaps you won't be able to assist us on this, andyou say so if that's the case, but you will infer from whatit is said there in Canon 1719 that any particularinvestigation under 1717 requires a decree of the ordinaryto initiate the investigation and another one to concludethe investigation; are you aware of that?A. I can see that, but I don't know whether that is thepreliminary investigation that we would suggest theIndependent Commissioner is undertaking or whether it's aprocess that follows after that preliminary investigation.I just don't know. But what I can say is that, whateverprocess is contemplated by Canon 1719, it's not impacted on
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the operations of the Independent Commissioner or hisinteractions with me or the Archdiocese, so far as I know.
Q. And certainly in the work that Mr O'Callaghanundertook as Independent Commissioner there weren'tseparate decrees of the ordinary to initiate aninvestigation in respect of each separate complaint as itcame in?A. Correct. There were not.
Q. Or to conclude an investigation?A. That's correct.
Q. Going back, Mr Leder, a moment to what you were sayingabout the ambit of confidentiality assurance and thatcertain matters certainly would be able to be reported tothe Archbishop and his agents, am I to understand you tosay that that would be without a particular release fromthe victim who had imparted the information?A. Yes.
Q. Unless there had been a specific request as envisagedby that subparagraph (xi) we looked at earlier?A. I think that's right, yes.
Q. You appreciate that there may be a difference in howyou and those operating the Melbourne Response conceived ofor understood the confidentiality and how victimsparticipating might have seen it; in other words, that theymight have seen it as being confidential to theCommissioner, to the Independent Commissioner, the publicface of the scheme?A. I'm sure that's possible, but I think it'sinconsistent with the literature and the IndependentCommissioner's descriptions of his functions and the sortsof descriptions that he gives as to his role. My belief isthat when people come forward to the IndependentCommissioner they are coming forward to have theircomplaint investigated and ruled upon and for steps to betaken in relation to the priest if that's appropriate, andthat it would be, if I may say, self-evident that stepscould not be taken in relation to the priest without therebeing a report of the findings to the Archbishop.
Q. It is the case, though, as I understand you haveaccepted, that certain information would be kept by theIndependent Commissioner and not disclosed even to the
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Vicar General or the Archbishop?A. Yes.
Q. But necessarily certain information, such as thefinding and what it's on exactly, would be imparted to theVicar General and the Archbishop?A. Yes.
Q. And the line between those two is not a line which hasbeen clearly drawn in these documents?A. Not in these documents. I would see that as a matterfor the Independent Commissioner to report on his findingsin the way that he considered appropriate.
Q. Well, you would appreciate, I think, that thedifficulty with that might be that one way of reportingwould be a very full report, including annexing variousmedical reports, transcripts of interviews and so on, andanother way of reporting might be a much briefer way whichjust reports the essential facts that were found to exist?A. And the latter is typical, except in the case ofcontested hearings where more detailed reasons areprovided, as I understand it.
Q. Well, possibly also in the case of Emma Foster?A. Yes.
Q. Perhaps we will come back to that aspect. But movingon now to the next component of the scheme, if we can goback to tab 13, and the next component of course atparagraph 3 on page 4 is the professional support services.That's what became Carelink, am I right?A. That's right.
Q. Can you explain for the Royal Commission, Mr Leder,what the thinking was behind having the treatment,counselling and support aspects separate from thecompensation aspect?A. I'm not sure that I understand your question. Interms of - do you mean that one is ongoing and one is not?Is that --
Q. Let me rephrase it. One way of dealing with thematter would just be to have compensation, and that dealswith everything?A. Yes.
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Q. Another way of dealing with it might be that the sameperson or group of people deal with questions of monetarycompensation as well as how much other support should befunded by the Archdiocese. But a different model is theone which was ultimately adopted. What is the thinkingbehind the adoption of this particular model?A. I see. I think that the expertise that one would relyon in order to either provide counselling or treatment ormake decisions about what sort of counselling and treatmentis appropriate is ultimately not the same sort of expertisethat one would rely on to try and assess compensation.
Q. And it's as simple as that. Different expertise?A. I think it's different expertise, yes. I think it'salso the case that there are some victims who seek supportfor counselling and treatment but don't seek compensation,and it's further the case, as we have heard, that victimswill be assisted by - can be assisted by counselling andtreatment through the process as well as at the end of theprocess, and indeed can be assisted by counselling andtreatment if they are not otherwise going through theprocess. So, for instance, could receive counselling andhave and do receive counselling and treatment administeredby Carelink while a criminal prosecution is under way orindeed while they are undertaking or contemplating civilproceedings.
THE CHAIR: Q. Mr Leder, it's a return to part of thediscussion we had before lunch, but you constantly use theword "compensation" when speaking of the money aspect of itall. What do you understand to be the nature of thecompensation? What are you compensating for?A. I think it is a recognition in monetary terms of thewrong done and the harm caused, but it is not generaldamages or special damages in the way that one wouldreceive, that a plaintiff would receive in legalproceedings.
Q. So it is compensation which is for the purpose ofrecognition?A. Yes.
Q. But not response?A. Well, I don't mean to disagree with Your Honour, butI would --
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A. I would see recognition as part of the response.
Q. Well, it all goes back to how do you work out betweennought and 50, or 75 as it now is, what is appropriate. Ifit is compensation - well, I'm not sure that "compensation"is the right word as I understand what you understand to beseeking to achieve?A. That may be so. We use the phrase "ex gratiacompensation", which I think seeks to distinguish, andperhaps we could have come up with a better phrase, but itseeks to make the point that this is not common lawdamages.
Q. "Ex gratia" adds nothing to the concept ofcompensation. It's the use of the word "compensation" thatis interesting?A. Yes.
Q. Many would say that a redress scheme doesn't providecompensation, but you have been thinking of it ascompensation?A. I understand Your Honour's point and perhaps it's notthe right word. I mean, perhaps "recognition" or perhapsthe word "redress" is more appropriate, and again perhaps"redress" isn't an appropriate word.
MR STEWART: Q. I think somewhere it may be referred toas the "ex gratia payment"?A. Yes.
Q. Which is perhaps the least misleading description?A. Yes.
Q. It's just a payment and it's ex gratia?A. Yes.
Q. You may or may not be aware, Mr Leder, that at leastin some instances in the administration of Towards Healingan approach has been taken to limit counselling or othersupport, professional support, to 10 sessions subject toreview and perhaps exceptional circumstances. Was italways envisaged, in other words from the outset of theconceptualisation of this model, that the professionalsupport under what became Carelink might be open-ended?A. It was. I think the one thing that we see in thisdocument that did not unfold as we expected was that thisdocument suggests that Carelink would provide or could
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provide treatment itself, and I see there "professionalsupport services will be available directly from thesestaff," and that in the event is not how things unfoldedand that was because we realised very quickly that for manyif not most victims the thought of getting counselling ortreatment from the Church, if I can put it that way, wasseen as inappropriate. While Carelink was set up to beindependent, the experience almost from the beginning wasthat the better approach was to administer the provision ofcounselling and treatment by third parties. I think theother thing that became apparent very quickly was that somevictims who came forward already had existing - werealready receiving treatment or counselling and that itseemed quite unwise to try and disrupt those existingrelationships if they were working.
Q. If we can look at paragraph 3.6 on the next page. Itraises the question once again of confidentiality. Itsays:
The service [that's Carelink] will respectthe confidentiality of complainants, butwill comply with legal reportingrequirements. It may also discloseinformation with the consent of thecomplainant.
Once again, perhaps you can give at least yourunderstanding of confidential to whom? Who is within thatcircle of confidence?A. I think within that circle of confidence is Carelinkand third party providers retained by Carelink, althoughI think that there are express confidentiality arrangementssigned up to, and I think absent consent from thecomplainant - I stand to be corrected - but I think that'sthe circle.
Q. The practice was, was it, to get the complainant'sconsent before reports from Carelink or in the possessionof Carelink were passed on to the Compensation Panel?A. Yes.
Q. And what about passing information by Carelink to youas solicitor for the Archdiocese?A. There's no consent process for that to occur, and itdoesn't occur.
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Q. So you would regard this promise of confidentiality inparagraph 3.6 to stop that; in other words, Carelinkwouldn't pass confidential information to you unless therehad been consent or release?A. I think that's right. I mean, there would be -I think the other exception to that is if Carelink or thestaff of Carelink were seeking professional advice or legaladvice about a particular issue, then I can envisage inthat circumstance that they might provide some information.But over the years the exchanges that I have with Carelinkare almost invariably on an anonymous basis so that I don'tknow who the - if they do seek some advice from me or seekmy opinion, I don't know who the complainant is, unlessit's a circumstance where I already know who thecomplainant is.
Q. But you can see even in the example you have given thepotential difficulty that may arise where you are theArchbishop's and Archdiocese's solicitor?A. Yes.
Q. Carelink has been set up on an explicit basisindependently with a promise of confidentiality. IfCarelink is then to share confidential information with youto seek legal advice as to how they should deal with aparticular issue, that might be seen as a breach of thispromise of confidentiality?A. I can see that issue. I would say that what I'mspeaking of is very much the exception and not the norm,but I can see the issue, yes.
Q. And you will appreciate that I am exploring thesematters because of their complexity and they are mattersthat will have to be addressed in any future redressscheme, if one is ultimately proposed?A. Also, although I don't think - unlike the situationwith the Independent Commissioner, I don't think it's beenmade express, but I would understand that I have aprofessional obligation of confidentiality to Carelink andI would very clearly understand that I was not to disclosethat information to the Archdiocese.
Q. Which puts you in a difficult position in the eventthat you are giving advice to the Archdiocese on any issuewhere you have got independent knowledge from Carelinkwhich you can't share with the Archdiocese?A. It could. It could. I can't think of a circumstance
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where it has happened.
Q. You may be aware that one of your Sydney partners haspublished in the Australian Law Journal on questions ofChinese walls and confidentiality within big law firms?A. I'm aware of the issue. I'm not aware of the article.
Q. The next part of the Four Part Plan is that covered inparagraph 4, the Compensation Panel, just a bit furtherdown the page. The opening subparagraph 4.1 uses thephraseology "ex gratia compensation". I think we'veprobably discussed those words sufficiently. In paragraph4.2 it says:
The function of the panel is to providecomplainants with an alternative to thepursuit of legal proceedings against theArchbishop or the Archdiocese.
Am I right that right from inception this compensationscheme was seen as an alternative to civil litigation?A. Yes.
Q. In other words, it wasn't ever envisaged that onemight get compensation under the Melbourne Response andalso be able to litigate?A. That's correct.
THE CHAIR: Q. Can I ask you about that. The realquestion is: why? Did you consider providing that theMelbourne Response may provide a sum of money on conditionthat it be set off against any common law claim? Why wasit thought appropriate for someone who might have a goodcommon law claim to deny them the Melbourne Response ifthey were to pursue a common law claim or vice versa?A. I don't think that we - I don't think that we didconsider that. As best as I recall, we did not considerit. What we contemplated was that victims could go throughthe Compensation Panel process, see what the outcome waswithout otherwise compromising their rights, and if theywere not - if they didn't want to accept the offer, theycould then continue with or pursue legal proceedings. ButI don't think we contemplated the option of both.
Q. You see how by saying to someone, you make it 50,000,"But you can't sue us; but you get $50,000 now", wouldoperate as a serious disincentive to someone who might in
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fact have a good claim because of the difficulties of thecommon law process?A. Yes, I can see that.
Q. Do you think on reflection that it should have beenframed so that if you accepted a modest sum under theMelbourne Response you were denied any opportunity for acommon law claim?A. Your Honour, I can see arguments both ways. I'maware, for instance, that the Defence Force scheme doesallow applicants to receive a payment from that schemewithout giving away their legal rights.
Q. What's the argument in favour of requiring them toforgo all their legal rights in return for a modest sum?A. Your Honour, I think there are a number. One isobviously finality which might be seen to be advantageousto one party or to both.
Q. That's finality for the Church?A. Yes, and finality for the victim.
Q. How is that a benefit if they have just got theoption? They can choose to finalise it there themselves orthe option to sue. Why is it a benefit to them?A. Well, it may be a benefit to some victims to feel thatthey have finalised that aspect of their claim. I heardand listened with great interest to what Mr Hersbach saidabout that, that he went through a process and for a periodof time found the signing of a release to be part of hishealing process, I think he said, and I also heard what hesaid subsequently. So, as I said, Your Honour, I can seearguments both ways.
Q. Where is the other argument in favour of imposing thatobligation on the victim?A. I think, Your Honour, my answer is that to the extentthat finality is a benefit, then that benefit is present.Beyond that, clearly someone who has a legal claim andgives it away is giving something away.
Q. In return for a sum which the Church would give themanyway?A. Well, when the scheme was set up the Church's positionwas that they would not otherwise give that sum.
Q. I know. But once the scheme is set up, the Church is
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saying, "Anyone who comes to us and justifies to theIndependent Commissioner an entitlement to a modest sumwill get it"?A. Yes.
Q. But they have to forgo any common law right?A. Yes.
Q. Can you understand why that might be seen as a schemethat protects the Church --A. Yes, I could understand that.
Q. -- unfairly? Do you understand that people would seethat as an unfair scheme?A. I don't agree, but I can see that people say that.
MR STEWART: Q. You will appreciate, Mr Leder, that itleaves as a possible inference that this scheme was aimedat purchasing for the Church freedom from legal process ata low price?A. I understand that and, as I have said several timesalready, the Church's view and my view is that the claimsbeing settled through this process were claims that had nosignificant prospect of success and therefore in that sensethat what victims give up when they sign the release is alegal claim that's unlikely to succeed. That might be seenas nevertheless having some value, I can see that.I absolutely understand that.
Q. The other point is that if it has no value orcorresponding disadvantage or debt to the Church, thenwhat's the point in requiring it?A. Yes, well, in a legal sense perhaps there isn't apoint. I think the other thing that to my mind isimportant is that the Church's position until now has beenthat this ex gratia payment does bring that aspect ofassistance to an end and as a lawyer it is my view that, ifthat is the Church's position, there is a benefit in beingclear about that. I think it would be undesirable for avictim to accept the ex gratia payment believing that thatwas the first in a series of payments if that's not theChurch's position, and until now it's not the Church'sposition. So, to my mind I think the clarity isappropriate.
THE CHAIR: Q. The easy way to do that is, as I said toyou earlier, to provide that if you do sue, it's set off?
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A. Yes, I agree. That's another --
Q. That's as clear as a bell?A. Yes, I understand that, and I agree.
MR STEWART: Q. Are you aware, Mr Leder, that that's ineffect, according to the evidence of Archbishop Pell inrelation to the Towards Healing scheme in the Archdioceseof Sydney, that's in effect what the position became; inthe last three or four years no releases were required andthere would just be a crediting if the claim was ultimatelysuccessful in court?A. I'm aware of that in general terms, yes.
Q. You referred to the evidence of Mr Hersbach and youwould have heard him say how signing the release was givingpower to the Church, giving up power to the Church whichwas in a sense putting him back in the position of beingabused, which was the exercise of what he saw as the powerof the Church?A. I did hear that, yes.
Q. And that's been heard from other victims too. Justreverting to the question of confidentiality, can you lookat tab 17. You will see this is a letter in November 1996,or memorandum, rather, from you to Alex Chernov QC, who wasthen the Chair of the Compensation Panel; is that right?A. That's right.
Q. And Mr Ted Exell, the business manager of theArchdiocese, copied to the Independent Commissioner, and itis dealing with the question of the basis for compensation.If we can scroll down further, you will see that sectionbeginning "Having re-read paragraphs (f) and (g), I suggestthat at the outset of the process there should be a'package' of documents provided to the applicant thatinclude" - and before we carry on, ultimately the way itworked, there was a package of documents provided to anapplicant after there had been a finding of abuse by theIndependent Commissioner; is that right?A. So the application for compensation form, is that whatyou are referring to?
Q. Yes?A. So that includes with it the various consents and soon. So I would agree that's a package. I think thatdocument is generally available, but it's a precondition to
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seeking compensation that you have a finding from theIndependent Commissioner. So ordinarily it is theIndependent Commissioner who would provide that form to thevictim.
Q. And one release is to enable the IndependentCommissioner to report to the panel?A. Yes.
Q. Another one is to enable Carelink to report to thepanel?A. That's right.
Q. You will see the last dot point on the page. You sayalso as a question almost, "Presumably an authority todisclose the same information to Corrs." Now, doI understand it correctly that that wasn't followedthrough?A. That's right. This memorandum is referring to amemorandum from Mr Chernov to me setting out his thoughtsand at that time the thought was that the compensation -I think it was Mr Chernov's proposal that the CompensationPanel would have a person as registrar or counselassisting, and ultimately that didn't proceed. So I thinkthat we were still working through how the process wouldwork and who the participants in it would be.
Q. Going back to tab 13, paragraph 4.3, you will seethere it provides:
The establishment of the panel and thepayment or offer to pay compensation is notan admission of legal liability. TheArchbishop, the Archdiocese and the Churchdo not accept that they have any legalobligation to make payments tocomplainants.
Of course, the truth is that would depend on thecircumstances. There may be, even on that view of the law,rare cases where the Archbishop and so on would accept alegal liability?A. Yes.
Q. And the Archbishop also recognises, reading on, that,"There is strong opposition from some quarters to themaking of any compensation payments." This is the same
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view we considered earlier, the one that you said not muchor any credence was given to; is that right?A. Yes, it is. I think it reflects how old this documentis.
Q. It seems to be offered here as a justification for thecompromise that was adopted in the scheme?A. In part, yes.
Q. Well, it can't be consistent to not give any credenceto that view but at the same time for it to be ajustification for the compromise?A. Well, I think the last sentence seeks to draw all ofthat together and say that there are arguments going indifferent directions and that the process strives toachieve what it strives to achieve.
Q. But from that are we to understand that one of thearguments that was weighed in the balance with others wasthe opposition to making any payments?A. Yes.
Q. But I understood your evidence before lunch, and I maybe wrong, to have been that that argument wasn't given anycredence?A. Perhaps rather than strong opposition - well, yes,I hear what you say. My memory is that, while there wasopposition, that Archbishop Pell didn't think much of it.I don't really - I mean, I see that that's still in thereas part of the document and I really can't say any morethan my memory is that Archbishop Pell did not give muchoxygen to that view.
Q. I want to address this question of the basis uponwhich it was thought that the Archbishop, the Archdioceseand the Church has no legal obligation, and perhaps that'scaptured in your own writing most conveniently at tab 33.So you will see this is now some nearly five years later?A. Yes.
Q. This is a memorandum from you to Ms Susan Crennan QC,as she then was, on her appointment as chair of theCompensation Panel; is that right?A. Yes.
Q. And you set out various matters for her by way ofbackground and so on, and on page 3 of that letter, halfway
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down it says:
It may be that in the course of yourcontact with victims you will be askedquestions about some of the legal issuesarising from claims against the Church.Fundamental to the initiatives that havebeen in place since 1996 are the followingpropositions.
And then you set them out. Firstly, that:
The Catholic Church is not a legal entityand accordingly it cannot be sued andserved with legal proceedings; [secondly]similarly, the Archdiocese of Melbourne isnot a legal entity; [thirdly] the Office ofthe Archbishop of Melbourne is not a legalperson, and the Archbishop is not acorporation sole.
Just pausing there, can you explain in lay terms what theeffect of that is, that the Archbishop of Melbourne is nota "corporation sole"?A. Yes. That means that if a particular person asArchbishops, let's say Archbishop Little, had some personalliability, that that liability does not transfer to hissuccessor, in this case Archbishop Pell.
Q. So if there was a case where the abuse by a priestcould in legal terms be visited upon a previous Archbishoponce he's left office, the only opportunity would be topursue that Archbishop if he remained alive or his estatenot yet devolved, but the next Archbishop would not beliable for that?A. Yes, that is that legal proposition.
THE CHAIR: Mr Stewart, the document you may have beenlooking for is behind tab 9A, I think, in my documents.There's a letter there that explains this issue, but in thewords of Mr O'Callaghan, I think. But it is actually not abad attempt to put into lay words, if you want to use it.
MR STEWART: Yes, I'm indebted to Your Honour. So that'sthe document which is referred to, if we can go over thepage from where we were, so it is tab 33, to the fourthpage towards the end, the next page. Further down it says:
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Enclosed for your information is a copy ofmy letter to Archbishop Pell of 28 October1996 concerning "legal technicalities",which deals with some of these issues.
And also other information is enclosed. That is then theletter that His Honour has referred to at tab 9A?A. Yes.
Q. I had taken you to your abbreviated version of it setout in the letter, but if we can go to tab 9A. So thecorporation sole aspect is explained there in thatparagraph on the screen?A. Yes, that's correct.
Q. And then over the page to paragraph (b), a second wayof putting a claim against the Church has been identified?A. Yes.
Q. Or against the Archbishop, and that is that he isresponsible for the control and management of priests, andthen you set out a response in relation to that in (c):
Some plaintiffs have alleged that theChurch is a voluntary association and thatthe Archbishop can be sued as representingits hierarchy and members. We considerthat this allegation is wrong at law.Sporting clubs can be voluntaryassociations, but the Church is not.
A. Yes.
Q. And in (d):
The final allegation that has been put isto the effect that the Archbishop is liableas the employer of priests. Once again, wetake the view that this is simply wrong.The relationship between a priest and hisBishop is of course regulated by Canon Law,it is not an employment situation.
THE CHAIR: Q. Leaving aside the issue of vicariousliability, you are aware of what's been said on behalf ofthe Bishops conference now about what the Church should do?
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A. Yes.
Q. And you are aware of what the Victorian parliamentaryinquiry recommended be done?A. I am.
Q. That is to create a vehicle, however you do it,whereby the Church can be sued?A. Yes.
Q. And people can recover against the Church?A. Yes, that's correct.
Q. Now, I know you were carrying out your duty as thelawyer in advising as you did, but was there a discussionamongst those who you were advising that in fact thiswasn't right; that something should be done to provide avehicle that could be sued?A. There was certainly - I think the entire context ofthe discussions with Archbishop Pell and others from theend of July 1996 through to the point of time of thisletter in October was that in the absence of legalliability what ought be done. I suspect that there wasprobably also some discussion as to whether there weredefences available that ought not be taken, and I thinkthat's why this letter is titled "Legal technicalities" inquotation marks. As I recall, there had been discussion inthe media at that time about whether the Church would orwould not take so-called legal technicalities and theproposition being advanced in this letter and in otherdiscussions with the Archbishop was that these weresubstantive legal defences and not technicalities.
Q. They are substantial legal defences, but it's fairlyclear from what the Church through its Bishops is nowsaying and the Victorian parliamentary inquiry is saying isthat it's not the right way to go?A. Yes, I agree.
Q. Was there a discussion back then which suggested thiswasn't the right way to go?A. As best as I recall, the discussion was that, "The lawis the law and these are the defences, so what ought bedone?" And the answer was to establish the MelbourneResponse.
Q. So no-one reached the view that it was the wrong thing
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to do to take these defences and not provide a capacity tosue?A. That's correct. No-one reached a view that it was thewrong thing to do. If that view had been reached, then nodoubt an alternate course of action would have been takenby the Archbishop.
Q. Has it come as a surprise to you that the Church'sposition through the Bishops at least has now changed?A. No.
Q. Why not?A. Because I think almost 20 years down the trackeveryone's understanding has increased a lot. There wassome discussion yesterday with Mr O'Callaghan as to why hisappointment was only for a period of six months. Myrecollection is that that was reflective of thesignificance of the problem as it was understood and theissues as it was understood to be at that time. Clearly itwas a completely inadequate understanding.
Q. What understanding has been achieved that's caused youto see that it's proper or appropriate for the Church tochange its position and provide a vehicle to be sued? Whathave you come to learn that's caused you to see that as theappropriate position?A. I think Your Honour is asking me to summarise the last18 years of my experience, which I would struggle to do.I don't know how to answer that in a simple way.
Q. I can understand you saying more victims have comeforward and the problem is larger than people may haverealised at the time. But why does that cause a change -is it proper to change the Church's capacity to be sued?A. Your Honour, relative factors would include not onlythe number of victims but a much greater understanding ofthe long-term effects of abuse, I think an increasedunderstanding of the failures of the Church to dealproperly with complaints earlier, an increasedunderstanding that there were complaints made that were notproperly acted on. I think all of these matters and nodoubt others all contribute to the increased level ofresponsibility that the Church now proposes to take.
MR STEWART: Q. Is it not perhaps, Mr Leder, that thepolitical environment is completely different; that victimsand their perspective is - I withdraw that. That victims
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are far more outspoken and a victim's perspective is givenfar more airing, there is a Royal Commission and so on,that that's the context in which the change now comesrather than that there is any greater understanding ofchild sexual abuse in the Church?A. I think it's both. I was hesitating to answerYour Honour's question because I knew I would do soinadequately. I absolutely agree that the factors to whichyou have referred are extremely relevant as well.
Q. Perhaps, put briefly, people won't stand for it anymore?A. That may be so, yes, and I can understand that.
Q. Can you think of any other organisation, institutionor organisation, that enjoys that sort of privilegedposition where employees are not employees, where there isno continuation of legal title over time and so on?A. There are certainly other religious institutions thatwould fall within the same category. I'm now trying tothink back as to what the law around unincorporated andvoluntary associations was 20 years ago. That's changed aswell. I think one of the factors is that the Church as aninstitution existed before the Australian legal system cameinto being and these things have unfolded as they haveunfolded and to the extent that the time for change andreform has come, I'm absolutely supportive of that.
Q. Would you agree that the position that the Churchenjoys in the law as articulated by you in these documentswe have looked at is a peculiarly privileged one?A. I don't know that I agree with your words. I agreethat it's different, for instance, from a corporation.
Q. You would agree, I understand, from what you havesaid, that it has become an anachronistic one?A. Yes, I think so.
Q. Perhaps we can go to tab 33, which was your letter toMs Susan Crennan QC, and on that same page but if we canscroll up to the first paragraph. You can read the firstcouple of lines to yourself, and then about the sixth lineit says:
Although the Archdiocese and the widerChurch have come under some criticism forrelying on so-called legal technicalities,
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the position of the Archdiocese is that ifan alleged victim elects to bring legalproceedings then having chosen to play inthe legal arena, the plaintiff must play tothe legal rules, and expect to be facedwith all of the defences and legalobstacles that are available to thedefendants.
That really encapsulates what you were trying to explainearlier about the approach that was taken at that time; isthat right?A. Yes, yes.
Q. If we can go back to tab 13, to paragraph 4.6 where wewere earlier, I think, or perhaps over the page from wherewe were. 4.5 you will see sets the cap as it then was at$50,000, and then 4.6 sets out how:
Complainants remain free to use the normalcourt process if they do not wish to availthemselves of compensation ... In thatevent they should expect that theproceedings will continue to be strenuouslydefended.
I'm just interested to understand whether you understandthere to be a difference between saying a case will bedefended and saying it will be strenuously defended?A. I think there is a difference, yes.
Q. There is a difference?A. Yes, I think so, yes.
Q. And what would that difference be?A. I think to say that a case is strenuously defendedreflects that every point that is open to a defendant totake will be taken. I think that's what that means.
THE CHAIR: Q. It will be fought out in the tough waythat litigation is sometimes fought out between commercialopponents; is that right?A. Yes, I think that's what that language means.
Q. And that's going to frighten the average person, isn'tit?A. Yes.
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Q. Was it intended to do that?A. Your Honour, I can hear the response before I give myanswer, but nevertheless my answer is that, no, it was notand that it was a reference at the time to - and I thinkI make some reference to this in my statement - a referenceat the time to a particular law firm that was acting in away that I perceived and that others perceived to not be inthe interests of their clients, and I might say that myopinion is that that view was ultimately vindicated by thedisciplinary proceedings taken against that lawyer forovercharging his clients in other matters, and I do want tomake it clear that in making this reference I in no wayrefer to any plaintiff lawyer or any lawyer acting for avictim in relation to matters in recent years. I make nocriticism of them at all.
Q. So this was put in to aim at one lawyer?A. Well, yes, he had a large number of clients at thattime. That's my best recollection of why that language wasused at that time.
Q. And continued to be used for quite some time afterthat?A. It continued to be used, Your Honour, until theFosters made a complaint about it, and I think theircomplaint was well made and I think the language wasinappropriate.
MR STEWART: Q. The point of course to this part of thefour point plan is to discourage civil suits?A. I understand why you say that. I think that at thetime, at the time the perspective was as that paragraphsays, that complainants are free to use the normal courtprocesses, but if they are, the case will be defended. Butthere is now an alternative which was not there before. Sowhy I'm - why I don't really agree with your suggestionthat it was intended to discourage plaintiffs was thatI think what it was seeking to say was, "If you are suing,then there will be no change to the position that theChurch has taken through the 1990s," which was the positionof strenuously defending cases, "but there is analternative which you can go through, see whether you arehappy with the outcome and if you are happy with theoutcome, settle your case, and if you are not happy," thenthis aspect of the Melbourne Response didn't change theposition.
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Q. I suggest it certainly leaves the impression the useof the phraseology "strenuously defend", perhaps takentogether with the sentence we looked at earlier inparagraph 4.3, which stated that "the Archbishop, theArchdiocese and the Church do not accept that they have anylegal obligations to make payments to complainants" was todiscourage any civil suits being brought?A. I don't want to be understood as seeking to defendthat language as being appropriate now. I'm seeking toexplain why it was used back when it was.
Q. In your statement, paragraph 91 on page 23 of yourstatement, you can read the first part of that to yourselfas we can to ourselves, Mr Leder. Then you will see inabout the eighth line it says:
I was seeking to make the point that, inconsidering whether to accept the offer orto pursue litigation, it should beunderstood that if litigation was pursuedit would be defended on the basis that thedefence was legally very strong and thataccepting the offer being made might beconsidered to be a better outcome than notaccepting the offer and running, andlosing, litigation.
Was that in the context specifically of the letter to theFosters?A. That's what I'm referring to there, yes.
Q. So that explanation wouldn't be one you would apply tothe document which is generic and where a particular casemight actually be very strong, others may not?A. I agree that that language doesn't apply to a casethat was very strong. Back in 1996 I had not yetencountered any cases that were strong, and the cases towhich Mr O'Callaghan referred yesterday in relation toFather Baker were at that time not cases of which I wasaware. My experience, and I think I said before lunch thatI had had experience with some 30 cases, and my view wasthat all of those cases were cases that were unlikely tosucceed.
Q. Returning to tab 13, if we could look now on page 7 atparagraph 4.9:
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The panel will determine guidelinesappropriate to the method in which it is tooperate.
That ultimately was left essentially to the CompensationPanel, those guidelines. That wasn't done in advance?A. That's correct, yes.
Q. And 4.10:
To be eligible for an ex gratiacompensation payment, the complainant willneed to establish the factual basis of theclaim. The panel will consult and liaisewith the Commissioner in this regard.
A. Yes.
Q. In any claim, any common law claim, there will beelements that will have to be established, obviouslyliability, causation and then quantum being the sequelae ofthe acts as a consequence of the causation. Here we havethe Commissioner, Independent Commissioner, essentiallydeciding, "Yes, the abuse happened; a payment should bemade"?A. Yes.
Q. Am I right? And then the panel deciding how muchwithin its limits to pay; is that right?A. Yes.
Q. Was particular consideration given in theconceptualisation of the scheme to questions of causation?A. The concept was that that was irrelevant.
Q. That was one of the compromises in a sense --A. Yes, one of the compromises, yes.
Q. So it wouldn't be necessary to establish causation,certainly not in a legal sense?A. That's so.
Q. At tab 21, as I understand it, are the CompensationPanel guidelines that were developed and which you thencirculated to the Compensation Panel members; is thatright?
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A. Yes, I think so.
Q. And those guidelines don't deal with the difficultquestion that His Honour has put of how to decide whetherin a particular instance what amount should be paid betweenzero and 50?A. I'm not sure whether it is there in that document ornot. I know that Mr Chernov did write something aboutthat.
THE CHAIR: Q. Do we have that? I'm not conscious thatI have seen it, but we may have it.A. I can certainly locate that document overnight, butI believe that - it's certainly not a complex formula oranything like that. On the contrary, it was a statement ofseveral sentences along the lines of the panel seeking torecognise the physical, mental and spiritual suffering andformulate an ex gratia payment in that amount.
Q. We would like to see the document because, as youwould have gathered, we are struggling to work out how itall pans out?A. Yes.
MR STEWART: Q. The way in which matters worked is thatthe compensation file, after the panel had made itsfinding, would get sent to you - I withdraw that. Let'shave a look at your statement at paragraph 58.A. Can I say, sir, that I think the document to which I'mreferring may be one of the documents referred to atparagraph 43 of my statement.
Q. Let's take a look at that, 43?A. But I may be mistaken, but I think that's whereI refer to that.
Q. By that are you referring to the two that are in thebundle, in other words the first two tabs, 20 and 21, orare you referring to the others that are not in the bundle?A. I can't tell from looking at this which of thedocuments referred to are the ones behind the tabs andwhich are not.
Q. Let's go to tab 20. At the foot of that page, is thiswhat you were thinking of? "In general terms", so this isa memorandum to members of the Compensation Panel byMr Chernov?
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A. Yes, that is.
Q. It says:
In general terms, the approach that thepanel will take in dealing with assessmentswill not be one whereby it seeks tocompensate the applicant for economic loss,pain and suffering as may be done inworkers compensation or personal injurycontexts. Rather, the panel is to decidethe appropriate recognition of thephysical, mental and spiritual sufferingexperienced as a result of the relevantabuse. This particular statement is notintended to oversimplify the problem of howone determines such an ex gratiacompensation.
Is that what you were thinking of?A. Yes, it was, and in particular, Your Honour, the lastsentence.
THE CHAIR: Q. So in conventional terms is it pain andsuffering?A. It is pain and suffering, was that, Your Honour?
Q. Is that what it is?A. Your Honour, I have always understood that what thepanel seeks to do is to in part have regard to the effectsof the abuse and in part to have regard to the seriousnessof the abuse and to consciously disregard the approach thata court would take in assessing general damages of lookingonly at the effect and not the seriousness and seek to -I'm probably not explaining myself very well - but to seekto give a recognition of the seriousness of the abuse andalso have regard to the effects and seek to combine all ofthat.
Q. So it's serious abuse with no effect, if you canassume such a proposition, wouldn't achieve a maximum sum?A. I'd suggest that serious abuse with no effect wouldn'tachieve a common law outcome --
Q. No --A. And that the intention is that it would achieve anamount. Whether or not it would achieve the maximum
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amount, I don't suggest that the approach is that linear,but that I suppose - perhaps the best analogy I can give inlegal terms is to say it's a combination of generalcompensatory type damages for pain and suffering with arecognition of exemplary or aggravated damages as well.So, having regard to both factors, not necessarily to thesame extent. That's my understanding and my recollectionbased on discussions I have had with Mr Chernov and thegeneral discussions I have had with chairs of the panelfrom time to time.
MR STEWART: Q. If we could go to paragraph 58 of yourstatement on page 15. This is what I was referring toearlier where you say:
Several weeks before the panel hearing isscheduled --
This is in relation to any particular claim, I take it?A. Yes.
Q.Mr Curtain's secretary forwards therelevant compensation file to me andI arrange for it to be copied anddistributed to other members of the panel,and for Mr Curtain's file to be returned tohim. In a typical case it is only at thispoint that I become aware of the victim'scomplaint, the Commissioner's finding andthe application for compensation.
Now, I would take it that that compensation file that hasbeen referred to would include in the usual course at leastthe following: the Independent Commissioner's report?A. Yes.
Q. And any report that there may be from Carelink to theCompensation Panel?A. Yes.
Q. And any associated medical and psychological reportsand assessments?A. Yes.
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Q. I take it not in a way that you wouldn't see them; inother words, they would come to you and you would haveaccess to them?A. I have access to them. I generally don't - I wouldhave to say I generally don't look at them.
Q. But if there was cause for you to do so, you would,and you would be able to?A. I would be able to, yes.
Q. To some degree this may go back to matters we coveredearlier, and if you find yourself repeating what you havesaid before, I take responsibility for that. Can youexplain how you understand it that that process whereby youreceive all of that information and those reports does notbreach the Independent Commissioner's and the CompensationPanel's undertakings of confidentiality to the victim?A. I don't believe that it breaches the IndependentCommissioner's undertaking because the Commissioner'sfinding and report is, as I sought to explain earlier, isintended in part for the Archbishop, and I believe that inmy capacity as solicitor for the Archbishop I'm within thatdisclosure.
Q. I understand that. And then in relation to anyreports from Carelink itself or independent medical,psychological reports and assessments?A. Yes, well, I consider that those documents aredisclosed to me on both a confidential and a withoutprejudice basis.
Q. The standard confidentiality release for Carelink hasthe applicant for compensation releasing Carelink from itsobligation of confidentiality in order to be able to havewhat's in the hands of Carelink forwarded to theCompensation Panel, but it doesn't, as I understand it,include being able to forward that material to theArchdiocese, Archbishop or their lawyers?A. Well, it's not forwarded to the Archbishop. It'sforwarded - I understand the point that you are asking meabout, and it's forwarded to me in my capacity, I believe,as the instructing solicitor for the chair of the panel.I do absolutely recognise the confidentiality of thedocuments and while I concede that they are available forme to have regard to where I'm minded to, what I say toyou, Your Honour, is that I don't.
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THE CHAIR: Q. So it's a Chinese walls inside your headissue, isn't it?A. No, Your Honour.
Q. That's not said in any way critically, but that's theproblem, isn't it?A. I understand the problem, yes.
MR STEWART: Q. Because the problem is when you say youreceive them as the instructing solicitor of the chair ofthe Compensation Panel, the question is instructingsolicitor for whom, and that must be for the Archbishop orthe Archdiocese?A. Yes, well, it's the Archbishop who appoints the chairand the other members of the panel, and akin to theIndependent Commissioner their mandate is to undertake anindependent assessment.
THE CHAIR: Q. Do you think it might be better if youweren't in that loop?A. Yes, I do, Your Honour.
Q. But you were confined to advising - if that's what hechose - the Archbishop. As far as the process ofCommissioner and determinations concerned, you were nowherenear him.A. Your Honour, in the course of reflecting on thesematters to prepare for the Royal Commission, yes, I haveformed that view.
MR STEWART: Q. Mr Leder, an issue that arose early inthe process and perhaps because it was raised explicitly bythe Fosters, was the one of Medicare payments. Can youjust explain what was the issue?A. The sorts of treatment and counselling that Carelinkfunds could be thought of as falling into twocategories: one, psychological and other treatment which atthat time did not attract any form of Medicare rebate,although I think the position has slightly changed in somecircumstances since; and, two, treatment from medicalpractitioners which was covered by Medicare. In relationto the latter, the issue was whether Carelink was intendedto fund the full amount of the payment or only the gapbetween the Medicare rebate and the actual cost. That wasthe issue.
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Q. And a perspective was articulated that this was byCarelink seeking to have a situation where it only fundedthe gap; it was in effect the Church burdening the taxpayerwith the obligation to pay as a consequence of the abuse bypriests?A. Yes, that's the argument, yes.
Q. And how was the issue resolved?A. The issue was resolved by - well, the issue wasresolved by seeking, in effect, a ruling from the HealthInsurance Commission as to whether it was permissible inthe context of the Carelink structure to claim only thegap, and that was ultimately the advice that they provided.
Q. We have covered briefly questions of deeds of release,but I would like to take you to in particular whatI understand to be the current version at tab 61. If wecan scroll down a bit. Would this be the current versionof the deed of release?A. I would need to see a little more of it. Lookingthere at recital F, that suggests to me that that is thecurrent version. Without having checked the rest of thedocument, I think that's the current version.
Q. Yes, that's what I wanted to ask you about. So itrecords there that, "On 4 April 2014 the Archbishop" -that's Archbishop Hart, I take it?A. Yes.
Q.... announced the establishment of aconsultation process to consider whetherthe current cap under the MelbourneResponse should be increased or removed,and said that any changes arising from thatconsultation process would be retrospectiveto the announcement date. The RoyalCommission ... is also examining redressschemes.
Then in brackets is the definition of "Possible Reforms".Then in G it is recorded:
Nothing in this document prevents theapplicant from seeking further redress inrelation to the abuse or any rights theapplicant may have as a result of changes
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arising from the possible reforms.
Can you explain how these changes to the release arose andwhat their effect is or intended to be?A. The changes arose because of the developments - thematters referred to in paragraph F, and in particular theannouncement of the Archbishop, and discussions between meand the Archdiocese that in circumstances where theArchbishop has said there's going to be a review process,and that might lead to a change, and that change would beretrospective, it was appropriate to document that and tomake it clear that a victim who wishes to acceptcompensation in the meantime based on the current cap of75,000 should have clarity that if as a result of thechange, so if the cap increases or if the cap is removed orif as a result of the consultation process there is someother change that they would be no worse off as a result ofhaving accepted the offer. So that's what is intended bythis.
Q. So in part it would be to try to ensure that the wholeprocess wasn't just brought to a halt pending theresolution with regard to what you referred to as possiblereforms?A. Absolutely.
Q. And --A. And, in addition, to put beyond doubt if the outcomeof this Royal Commission is some change that impacts onexisting deeds then, while it might not be necessary tostate that, to make it express in the document that ifthere are changes to past settlements as a result of thisRoyal Commission that this deed would not in any way seekto stand in the way of those changes.
Q. And, to your knowledge, in the period since April ofthis year have there been acceptances of offers ofcompensation and deeds of release in this form signed?A. Yes.
Q. Do you know how many?A. I don't. I would guess in the order of a dozen.
Q. Did the Archbishop or the Archdiocese in the processof the Melbourne Response ever require confidentiality orsilence with respect to the abuse itself?A. No.
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Q. Or to the fact of a settlement having been reached?A. In settlements through the Melbourne Response, no.
Q. By qualifying your answer in that way you suggest thatin some other settlements there have been such requirementsof confidentiality?A. Not as to the fact of the abuse, to my knowledge, butas to the settlement, yes, and I think Mr and Mrs Fosterwould be aware that the settlements with their family arean example of that.
Q. So within the Melbourne Response is it the case thatthe only confidentiality that was required was what wemight term without prejudice confidentiality?A. Yes.
Q. In other words, if an offer of an ex gratia paymentwas not accepted, the fact of the offer having been madewould be kept confidential in any future legal proceedings?A. Yes.
Q. So those answers you have given me about noconfidentiality with respect to the abuse being required,that's in the context of the deeds of release; is thatright?A. Yes.
Q. Can we have a look at tab 271, at page 3. You willsee that this is Mr [AFA]'s application for compensationform, and at the foot of the page you can see it's dated asrecently as 28 February 2011. It has various undertakingsand releases in relation to confidentiality, butparticularly if we can look at paragraph (d). You may needto see above that. If we can see the opening part of theparagraph. So [AFA] says he:
... hereby apply for ex gratia compensationin respects of sexual abuse committed [andso on] on the following bases...
And then in (d):
Neither I nor any person acting on mybehalf [and then we can leave out the rest;the members of the Panel, Archbishopet cetera] will (save as required by law)
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disclose to any person, rely or seek torely in any arbitral or judicial proceeding(whether or not such proceeding relates tothe subject matter of this application) onany communication, statement orinformation, whether oral or documentary,made or provided in the course of or inrelation to the Panel's deliberations.
A. Yes.
Q. So that's quite a broad undertaking that an applicantfor compensation undertakes with regard to communications,statements or information in whatever form either made orprovided in the course of or in relation to the panel'sdeliberations?A. Yes.
Q. So that, as I'm reading it, would cover a medicalreport, for example, or assessment that an applicant forcompensation might have procured from their own medicalprofessional and that that was provided by the applicant inthe course of or in relation to the panel's deliberations,but the applicant would be required not thereafter to beable to use it or rely on it or disclose it to any person?A. I'm sorry, could you give me that question again?
Q. Yes, it was long. As I read that, that would have theresult that an applicant for compensation who provided tothe panel a report of his or her own medical practitionerin support of the claim and was thereby used in the courseof or in relation to the panel's deliberations would not beable to disclosed by the applicant to any person or reliedon or be sought to be relied on in any arbitral or judicialproceedings?A. I now see the - I see what you are putting to me.
Q. I can't imagine that was intended?A. No, that's absolutely not the intent of thatprovision.
Q. It may have to be revisited?A. Yes, I agree.
THE CHAIR: Q. While we are looking at this document,can I ask you a couple of other things. Subparagraph (b):
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The Archbishop will offer to me such anamount as may be recommended to him by thePanel, provided I execute appropriatereleases and discontinue any relevant legalproceedings.
A. The offer obviously precedes the signing of therelease.
Q. Well, the way that's worded, you waive your rightswhen you make the application?A. Yes, I think the reference to "offer" to me is to beread as "pay".
Q. Maybe that needs attention to?A. Yes, I agree.
Q. It's also a little vague; "provided I executeappropriate releases". The person is not told what theyare?A. At that point they are not, no.
Q. Well, this is the document they are asked to sign whenthey are making an application?A. I think elsewhere, though, there is an explanationthat the release is a release of any legal claim with acarve-out for entitlements through Carelink.
Q. Now, a person who approaches the panel would beentitled to procedural fairness?A. Yes.
Q. Does (g) seek to take that away in the sense that youcan't have it reviewed?A. Sorry, can I see (g), please?
Q. Sorry, "I irrevocably waive any rights that ... I mayhave had to seek judicial review of any act or omission".If you are not given procedural fairness, is (g) seeking totake away your capacity to have it reviewed?A. I can see that argument, Your Honour. It's neverbeen --
Q. Hopefully it's never arisen.A. It's never arisen.
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A. Certainly, Your Honour.
THE CHAIR: Yes, Mr Stewart, do you have anything moretoday?
MR STEWART: Nothing that can't wait until tomorrow,Your Honour.
THE CHAIR: All right. I think we might adjourn there andresume tomorrow morning. Tomorrow we will adjourn at 3.30or thereabouts so that arrangements can be made to connectto Rome and so on. Then, depending upon where we get to,we might take a short break in proceedings at about 5.30 toallow everyone a little bit of respite before we finish theevidence of Cardinal Pell. We will play that a little bitby ear, but that's the general intention for tomorrow. Wewill adjourn until 10.
<THE WITNESS WITHDREW
AT 4.00PM THE COMMISSION WAS ADJOURNED UNTIL THURSDAY,21 AUGUST 2014 AT 10.00 AM
